Some late Friday breaking news.
A Texas judge on Friday issued a temporary exemption to the state’s abortion ban that would allow women with complicated pregnancies to obtain the procedure and keep doctors free from prosecution if they determined the fetus will not survive after birth.
State District Court Judge Jessica Mangrum of Austin wrote that the state’s attorney general cannot prosecute doctors who, in their “good faith judgment,” terminate a complicated pregnancy. Mangrum outlined those conditions as a pregnancy that presents a risk of infection; a fetal condition in which the fetus will not survive after birth; or when the pregnant person has a condition that requires regular, invasive treatment.
In her ruling, Mangrum wrote that Senate Bill 8, the law restricting abortion access, was unconstitutional. She said that enforcement of the abortion ban was beyond the legal powers of Texas officials tasked with prosecuting physicians under this law.
In a statement celebrating the injunction, the legal group representing the plaintiffs, the Center for Reproductive Rights, said that the ruling gives clarity to doctors as to when they can provide abortions, allowing them to use their own medical judgment.
[…]
The state is likely to appeal, which could cause the injunction to be blocked while the case makes its way through the courts. The ruling suggests patients with complicated pregnancies can seek abortions in the state without prosecution of those who aid in and perform the procedure. A trial to determine the issue, clarifying when a medical emergency justifies an abortion, has been scheduled for March 25.
See here and here for the previous updates. I would say the state is certain to appeal and that this ruling is very likely to be put on hold pending the resolution of the lawsuit, but we’ll put that aside until it happens. I will note that SB8 had previously been ruled unconstitutional in a different state lawsuit, but that was in a more limited context, and as far as I know that has not been tested in any way. I don’t know what the odds are of that aspect of the ruling surviving, but again it will take some time to work its way through the process. It’s also a lead pipe cinch that as long as the state is in Republican control, further laws will be passed to re-illegalize abortion if somehow SB8 manages to fall. I don’t mean to be Debbie Downer, but let’s maintain some perspective here.
The Chron adds some details.
In an injunction, state District Judge Jessica Mangrum also shielded doctors from being prosecuted for performing abortions if they determine using “their good faith judgment” that a pregnancy poses “a risk to a patient’s life.”
The physical medical conditions that are exempted from the abortion ban, Mangrum ruled, include “at a minimum”:
- a physical medical condition or complication of pregnancy that poses a risk of infection, or otherwise makes continuing a pregnancy unsafe for the pregnant person
- a physical medical condition that is exacerbated by pregnancy, cannot be effectively treated during pregnancy, or requires recurrent invasive intervention
- and/or a fetal condition where the fetus is unlikely to survive the pregnancy and sustain life after birth.
[…]
The Texas abortion ban’s exception allows the procedure only when there is a “substantial” risk to a mother or if a fetus has a fatal diagnosis.
But given the state’s stiff penalties for anyone who violates the ban — they face potential prison sentences of up to 99 years, tens of thousands in fines and the loss of their medical licenses — many doctors and hospitals have been fearful of immediately intervening even when there is a clear danger.
Unlike other litigation, the lawsuit is not trying to overturn the Texas ban or others like it, but instead clarify when exactly physicians can provide abortions during dangerous or unviable pregnancies.
Since the suit was filed, Texas lawmakers passed a bill that protects health care providers and pharmacists from criminal, civil and professional liability if they perform an abortion on a patient with two particular life-threatening conditions.
Those are ectopic pregnancies, in which the egg implants outside the uterus, and previable premature rupture of membranes, or PPROM, in which a patient’s water breaks before the pregnancy reaches viability.
See here for more on that new law, which as I noted wouldn’t have helped any of the plaintiffs in this lawsuit. Those were important exemptions to add, and they further show just how cruel and inappropriate the original anti-abortion laws were, but they were extremely limited. This lawsuit, if it does ultimately succeed, would be more expansive. It would still not make abortion legal in general – while there continues to be other litigation, I really don’t see a path to this in the near term that doesn’t include either federal law or a wholesale change in our state government – but it would make things better than they are now. One step at a time. A statement from the Center for Reproductive Rights is here, with full information about the lawsuit here, and The 19th has more.
UPDATE: The state has already appealed, and so the ruling is on hold. I’m sure there will be more reporting on this during the week.