The Texas Supreme Court Does Not Care If Pregnant People Die

Is this a preview of what’s to come from the U.S. Supreme Court?

Illustration of Texas outline with an eraser erasing the outline
The Texas Supreme Court dismissed patients’ near-death experiences and chastise providers for not understanding the law. Cage Rivera/Rewire News Group illustration

This piece first appeared in our weekly newsletter, The Fallout.

The conservative legal movement’s quest to erase abortion from health care took a devastating leap forward last week as the Texas Supreme Court upheld the state’s abortion ban and refused to provide guidance for what, if any, medical exceptions would fit the ban’s narrow exception.

The decision is a textbook example of legal gaslighting that takes a page directly from Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization, and offers a likely preview of what’s to come when the Supreme Court issues its ruling in the Emergency Medical Treatment and Active Labor Act (EMTALA) case out of Idaho later this month.

In Zurawski v. Texas, more than 20 patients who were denied life-saving abortion care sued the state to clarify which emergencies qualified for the ban’s narrow exception. In other words, the Zurawski plaintiffs asked the Texas courts to explicitly say just how close to death someone must be before a Texas doctor can confidently provide life-saving abortion care.

Rather than answer that question directly, the Texas Supreme Court refused. Instead, the justices chose to dismiss patients’ near-death experiences and chastise providers for not understanding the law (almost as if they expect doctors in a post-Roe world to also be lawyers), striking down a lower court ruling that had allowed doctors to use their “good faith judgment” when deciding if emergency abortion care is required.

And the more than 20 plaintiffs are barely mentioned. And that’s the point, because one of the main goals of the anti-choice movement is to eradicate abortion—and the patients who need abortion care—from health care entirely. The Zurawski opinion goes a long way toward making that goal a reality.

Don’t think for a minute that the Zurawski outcome will be limited to Texas—because like I’ve said before, the Lone Star State’s abortion policy doesn’t just stay there.

This week, during a Senate committee hearing on the impact of abortion bans two years after Dobbs, Republicans offered testimony from Christina Francis, the president of the American Association of Pro-Life OBGYNs, in support of the idea that abortion is never necessary to save a pregnant person’s life and that patients should be forced to deliver doomed pregnancies.

We’re also waiting for the decision in Idaho v. United States, the case that pits state-level abortion bans against federal law that requires certain hospitals to provide abortions as emergency stabilizing care in some situations. In that case advocates argued that doctors must consider two patients—the pregnant person and the fetus—when deciding to administer life-saving abortion care, a consideration that would nearly always take abortion care off the table for most patients. For more about EMTALA and the grave consequences from an adverse ruling, check out freelance reporter Susan Buttenwieser’s article here.