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Texas justices hear a case about the state's three overlapping bans on abortion

JUANA SUMMERS, HOST:

At a hearing in Austin today, the justices of the Texas Supreme Court heard a case about the state's abortion ban - specifically about whether the medical exemption in the bans are too narrowing and confusing. NPR's Selena Simmons-Duffin has been following this case closely and is here to tell us more. Hi, there.

SELENA SIMMONS-DUFFIN, BYLINE: Hi, Juana.

SUMMERS: All right. So Selena, before we dig into what happened today, lay out the case for us. Who is suing, and what are they asking for?

SIMMONS-DUFFIN: So this case was brought by the Center for Reproductive Rights, and they're representing 20 patients who had serious pregnancy complications but were denied abortions or faced delays and also two OB-GYNs who say they can't practice medicine properly because the abortion bans are unclear. And if they interpret them incorrectly, they could face life in prison and the loss of their medical license. So they're asking the court to clarify the medical exception so that doctors have more leeway to use their judgment to provide abortions when they consider it medically necessary.

SUMMERS: And what is it about the abortion law in the state of Texas that they say is not clear?

SIMMONS-DUFFIN: So there are currently three overlapping abortion bans. Abortion is illegal in the state from the moment pregnancy begins. There is a medical exception that says abortions are allowed if the life of the patient or a, quote, "major bodily function" are in jeopardy. And the state has been fiercely defensive about the law. And they say - attorneys for the state say the language of the medical exception is clear and sufficient, and they suggest that doctors are responsible for any harms that the patients claim in this case.

SUMMERS: Huh. OK, so what happened today? Give us some of the highlights.

SIMMONS-DUFFIN: Well, right off the bat, the justices asked about this question of clarity. This is Beth Klusmann. She was arguing for the Texas attorney general's office. She only made it less than a minute into her opening statement when she was interrupted by Justice Debra Lehrmann.

(SOUNDBITE OF ARCHIVED RECORDING)

DEBRA LEHRMANN: Can you give us a - just a bright-line rule about what medical emergency means?

BETH KLUSMANN: Your Honor, I can only point the court to what the legislature has said that the - what the medical emergency exception means - the life-threatening, physical condition that's caused or aggravated by a pregnancy that puts a woman at risk of death or substantial risk of serious impairment of a major bodily function.

LEHRMANN: And you acknowledge that that puts medical professionals in a really bad situation?

KLUSMANN: No, Your Honor, I don't think it does.

SIMMONS-DUFFIN: This was a theme of the hearing. Is that language unclear? And if it is, what's the role of the state Supreme Court to clarify the statute? The justices really seemed to wrestle with this question. And another big theme was standing. So Texas has argued that none of the patients have standing to sue because they were harmed in the past, and any future harm is theoretical. Here is how the Center for Reproductive Rights attorney Molly Duane responded to that argument in the courtroom today. And just a warning - her comments are fairly graphic.

(SOUNDBITE OF ARCHIVED RECORDING)

MOLLY DUANE: Then the court would be saying that a patient needs to have blood or amniotic fluid dripping down their leg before they can come to court. And quite obviously, patients in those situations are much more concerned with getting proper medical care and saving their lives, their fertility and their families than they are with finding a lawyer and coming to court.

SIMMONS-DUFFIN: Several of the justices seemed, to me, to agree that at least some of the plaintiffs do have standing and that there is confusion among doctors and that the lack of clarity in the law as it stands is problematic.

SUMMERS: OK. And Selena, what does this mean for abortion in the state of Texas? What comes next?

SIMMONS-DUFFIN: Well, for now, abortions are still banned in Texas. What is next is the Texas Supreme Court will have to decide if the medical exception should change temporarily as the case continues through the legal system. The decision could come in the next few weeks, but the timing isn't easy to predict. That's what Professor Liz Sepper of Texas Law in Austin told me.

LIZ SEPPER: It will depend a great deal on getting agreement. This case, I think, became more tangled the more that the justices pulled on the thread.

SIMMONS-DUFFIN: She also said that, watching the hearing today, it was hard to get a read on the whole court, but she does think there's a good chance this case will proceed to trial, which is scheduled for next April. And the hearing on the injunction was - in the district court last July - was really dramatic. You had four patients testifying about their sagas with serious complications, doctors not even willing to say the word abortion to them. Some had to travel to other states. Two plaintiffs developed sepsis while waiting for Texas hospitals to provide abortion. So if the trial does go ahead in the spring, it will definitely be one to watch.

SUMMERS: NPR's Selena Simmons-Duffin. Thank you.

SIMMONS-DUFFIN: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Selena Simmons-Duffin reports on health policy for NPR.
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