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One plaintiff vomited while recounting her ordeal. The case marks the first time patients denied abortions have sued a state since Roe was overturned.
“My first thought was, maybe surgery can fix this, but I was told, ‘Sorry, your daughter is incompatible with life, she will be born without a skull,’” Casiano said in a Texas district court hearing on Wednesday. “She was going to die inside or outside of my womb.”
Her doctors bluntly told her she had “no options” in Texas as a result of the state’s abortion laws, handing her only a prescription for antidepressants. Casiano considered traveling to New Mexico for pregnancy termination, but the barriers were too steep. She could not take time off work and lacked reliable transportation, funds to pay for the procedure, and child care. Casiano came to the realization that she would have to carry the high-risk pregnancy to term. She felt like a “prisoner” in her own body.
Her due date was in May, but Casiano went into labor in March. She delivered her baby, then watched her slowly die: She was “gasping for air” and turning from pink to red to purple. Her eyeballs started bleeding. “I watched my baby suffer for four hours,” Casiano sobbed. “I told her, I am so sorry I couldn’t release you to heaven sooner. … There was no mercy for her.”
In the middle of recounting her harrowing ordeal, Casiano began vomiting on the witness stand, attorneys rushing to provide her a wastebasket.
Casiano is one of 13 women who have joined a landmark lawsuit against the state of Texas after being denied abortion care despite life-threatening pregnancy complications. She and others offered a stream of emotional testimony during a two-day hearing in Austin.
Since March, when the Center for Reproductive Rights filed Zurawski v. Texas, the lawsuit has grown from eight plaintiffs to 15, including two OB-GYNs. The patients suing are still just a fraction of the “countless” people in Texas denied life-saving care, attorneys say. Requesting a temporary injunction, the plaintiffs are not necessarily looking to halt the Texas abortion laws. But they hope to at least force the state to clarify the scope of the laws’ ambiguous carveout for medical emergencies and affirm that physicians can provide abortion care when emergency conditions arise — a “bare minimum” request that could save lives. Meanwhile, Texas is asking state District Judge Jessica Mangrum to dismiss the case.
“Texans have been living under strict abortion bans for nearly two years, longer than residents of any other state in the country,” Molly Duane, an attorney with the Center for Reproductive Rights, said in an opening statement. “While Texas’s abortion bans ostensibly have a medical exception, that exception simply does not function in practice. [These women] all wanted children and all suffered unimaginable tragedy. The harms these women suffered were all directly caused by the state’s ban on abortion.”
Duane and her colleagues say “inconsistencies” in the language of Texas abortion laws, the use of “non-medical terminology,” and “sloppy” legislative drafting have resulted in confusion throughout the medical community, leading physicians to over-comply with the laws or risk harsh criminal and civil punishment, placing patient lives in jeopardy.
Attorneys with the Center for Reproductive Rights say the lawsuit not only marks the first time women denied abortions have sued a state since Roe v. Wade was overturned last year, but it’s also likely the first time abortion patients denied care have testified against a state since the historic reproductive rights case was filed in Texas in the early 1970s.
“We’re All Paralyzed”
As the first — and largest — state in the country to outlaw abortion, Texas has felt the disastrous impact of a post-Roe world longer than other red states. Nearly 10 months before the U.S. Supreme Court eviscerated the constitutional right to abortion in Dobbs v. Jackson Women’s Health Organization, Texas lawmakers enacted Senate Bill 8, a near-total ban with a novel private enforcement provision that empowered anti-abortion vigilantes to file civil suit against a provider or anyone who “aids or abets” care. Following Roe’s demise, politicians allowed a complete abortion “trigger ban” to take effect. Neither S.B. 8 nor the trigger law have exceptions for cases of rape, incest, or severe fetal abnormality. The trigger law carries harsh penalties for doctors, including revocation of their medical licenses, civil fines of at least $100,000 per violation, and up to 99 years in prison.
While the Texas abortion laws make an exception for medical emergencies, they are vaguely defined as “risk of death or a substantial impairment of a major bodily function.” The nonscientific nature of the language — coupled with the severe consequences of violating the law — has instilled confusion and fear in Texas doctors, who are erring on the side of extreme caution to avoid liability. Physicians are either waiting until a patient is on “death’s door” before offering abortion care — or failing to intervene at all. The result has been a stream of horrific stories of pregnant patients experiencing life-threatening medical complications, including organ failure, sepsis, and hemorrhaging.
Dr. Damla Karsan, an OB-GYN in Houston, routinely provided abortions to patients, including those with a wide array of high-risk complications, including ectopic pregnancy and preeclampsia. But since S.B. 8, the threat of being “targeted” with punitive charges has forced her to halt the provision of potentially life-saving care. In court, she described a pregnant patient who visited her in the ER at 15 weeks, bleeding profusely and carrying a nonviable fetus. While her risk of hemorrhage was high, Karsan could not offer her pregnancy termination. The patient was forced to make a 14-hour drive out of state for care and ended up developing kidney complications.
“I feel like my hands are tied. I have the skill, training, and experience to provide care but I’m unable to do so — it’s gut-wrenching,” Karsan said. “I am looking for clarity, for a promise that I’m not going to be prosecuted for providing care.” The law has also made it difficult to recruit doctors to Texas. They don’t want to practice in the state because “we’re all paralyzed at providing standard obstetric care,” she added.
Texas officials have not only offered little direction for uncertain doctors but have also gone out of their way to prevent assistance. Last year, a Trump-appointed federal judge blocked the Biden administration’s effort to provide emergency abortion guidance for doctors under protections in federal law after a suit filed by ardently anti-abortion Texas Attorney General Ken Paxton, who is named as a defendant in the Zurawski case. (In May, the Texas House impeached Paxton, alleging a series of offenses including bribery, abuse of office, and obstruction. Currently suspended, he faces a Senate impeachment trial this fall.)
Despite pleas from Democrats, Republican lawmakers remained largely unwilling to engage on the issue of medical exceptions during the five-month legislative session that began in Texas in January. At the eleventh hour, however, the Legislature quietly passed a bill that ostensibly seeks to offer more legal protection for doctors performing emergency abortion. Intentionally kept under the radar to ensure its passage, House Bill 3058, slated to take effect on September 1, covers treatment of ectopic pregnancies, where a fertilized egg implants outside the uterus, and pre-viable premature rupture of membranes, in which water breaks before the stage of viability. Doctors who can prove they “exercised reasonable medical judgment” in these cases could potentially be protected from liability.
The law — authored by Democratic Rep. Ann Johnson and sponsored by Republican Sen. Bryan Hughes, the author of S.B. 8 — was seen as a “compromise” with Republicans who didn’t have the “appetite” to fully resolve the glaring problem. Defendants invoked the law during the two-day hearing, asking the plaintiffs if they were aware of its provisions.
But even under H.B. 3058, doctors must be indicted or sued to assert the “reasonable medical judgment” defense, and they would still face the same draconian penalties. Duane said the law was “wholly insufficient” to address the widespread suffering of patients across Texas.
“Under this bill, doctors who provide an abortion will still have to defend themselves in court to prove the abortion was necessary,” Duane said. “Imagine doing that in a state whose government has been zealously hostile towards abortion providers. Doctors can still be hauled into court where they face cripplingly high fines, life in prison, and loss of their medical license.”
H.B. 3085 also leaves out a litany of other pregnancy complications. On the stand, Dallas resident Ashley Brandt described how she and her husband were overjoyed to welcome twins last May. However, like Casiano, Brandt learned that one of her twins had developed anencephaly and would not survive birth. Despite the condition placing Brandt’s life and the life of the healthy twin at risk, doctors refused to terminate her pregnancy under Texas law. Spending thousands in savings, Brandt was forced to travel to Colorado for life-saving care. “If I could not go out of state, I would have had to give birth to a daughter with no skull or brain, I would have held her until she died,” Brandt said.
Deflecting Blame
Confronted with the horror stories the women shared on the stand, state officials made clear that they believe they are absolved of any responsibility. The patients’ “alleged injuries” were not traceable to the actions of the defendants, they argued, but rather the result of the “independent actions” of individual medical providers. To reinforce this circular logic, state attorneys repeatedly asked each plaintiff if Paxton “directly” told them they could not get an abortion.
All of the women reiterated on the stand that they did not place blame on the physicians who denied them care, but on the politicians who crafted the dangerous laws that their doctors were compelled to abide by. “Given the nature of plaintiffs’ past experiences, it is understandable that they are seeking to place blame, but the blame directed at defendants is misplaced,” Assistant Attorney General Amy Pletscher responded.
The state’s sole witness, Dr. Ingrid Skop, initially repeated the idea that the onus rested with individual doctors and that the Texas abortion laws were clear. However, when reading Skop’s deposition out loud, plaintiffs’ attorneys revealed that she had been “begging” medical organizations like the Texas Medical Board to give “confused” doctors “guidance” on the law.
Either way, Skop is hardly an impartial expert. Part of the anti-abortion “research” organization Charlotte Lozier Institute as well as the American Association of Pro-Life Obstetricians and Gynecologists, the Texas doctor is also one of the plaintiffs behind the shadowy lawsuit seeking to revoke the Food and Drug Administration’s approval of the abortion-inducing drug mifepristone. The lawsuit’s claims are based in pseudoscience. Skop, who has been criticized for “spreading medical misinformation,” has also argued in favor of forcing rape and incest victims as young as 9 or 10 to carry pregnancies to term. “If she is developed enough to be menstruating and become pregnant and reach sexual maturity, she can safely give birth to a baby,” Skop told the House Oversight Committee in 2021.
Attorneys for the state, who aggressively questioned the plaintiffs’ experiences and often interrupted tearful testimony with objections, claimed the women and “abortionists” who filed suit had embarked on an “ideological crusade” and “media tour.” They even alluded to supposed financial incentives, pointing to Casiano, who started a GoFundMe page when she was unable to pay for her fetus’s funeral. “Plaintiffs simply do not like Texas’s restrictions on abortion,” an attorney for Texas said.
Perhaps even more dismissive, the state sought to invalidate the women’s standing to sue by claiming that some plaintiffs were unlikely to become pregnant again and therefore wouldn’t face life-threatening complications in the future. Their experiences are “tragic, but in the past,” an attorney for the state said. Lead plaintiff Amanda Zurawski stressed the irony of the state’s argument, pointing out that the scarring and damage to her reproductive organs that led to potential infertility was caused by the infection she incurred due to the abortion restrictions.
“What they are arguing is infuriating and disgusting,” Zurawski said. “Do they not realize the reason why I may not be able to get pregnant again is because of what happened to me as a result of the laws that they support?”
Zurawski nearly died after she was refused abortion care in May 2022. The Austin woman’s water broke at just 18 weeks. Carrying a nonviable fetus, she desperately needed a pregnancy termination, but her doctors refused because she “wasn’t sick enough.” They also warned her that it would be too dangerous to make the 11-hour drive to New Mexico for care because she could develop an infection en route. Zurawski’s health quickly deteriorated, and she was rushed to the ICU with septic shock. She lost control of her bowels and her ability to sit up unassisted. Doctors battled to keep her alive.
“I went from feeling physically OK to shaking uncontrollably. I was freezing cold even though it was 110 degrees out,” she said. “I couldn’t get a sentence out. My husband, Josh, asked me how I was feeling on a scale from one to 10. I didn’t even know the difference between the numbers one and 10. It was terrifying.”
Zurawski miscarried three days later. As a result of the sepsis, one of her fallopian tubes is permanently closed, and she has undergone several procedures to reconstruct her uterus after it collapsed.
Others have made the painful choice to avert future pregnancies while living under the Texas abortion bans, even if that means altering their long-term life plans. While Brandt had wanted to keep expanding her family, after her traumatic ordeal, her husband underwent a vasectomy to prevent the same outcome. “I don’t feel safe to have children in Texas anymore,” Brandt said through tears. “I knew it was very clear my health didn’t matter, but my daughter’s health didn’t really matter either.”
Casiano is terrified of becoming pregnant again, likening her experience to “torture.” She made the choice to receive a tubal ligation. “I decided the only way I can save myself from that harm and pain — and going through that torture again — would be to get my tubes removed,” Casiano said.
Mangrum, the judge, elected as a Democrat in 2020, is expected to rule on the case in the coming weeks. The party interested in appealing the ruling will likely do so at the Third Court of Appeals, which sees a full Democratic bench. Then, the case could make its way to the Texas Supreme Court, whose judges are all Republicans.
Following the first day of trial, Duane lauded the bravery of the women who publicly shared their stories and stressed that they were far from the only ones suffering in Texas.
“No one should be subjected to this punishment just for needing health care,” Duane said to reporters outside the courthouse. “But Texas politicians continue to evade responsibility for the agony they have caused and continue to cause. Since this case was filed, even more women have reached out to us to say, ‘The same thing happened to me.’”
“I can guarantee you more messages are waiting in my inbox now.”
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