State of Texas: Women ask state Supreme Court to clarify abortion ban exceptions

AUSTIN (Nexstar) — The Texas Supreme Court heard oral arguments on Tuesday, in a case brought by women challenging the state’s near-total ban on abortion, marking the latest development in a long legal battle spurred by women who said the ban nearly cost their lives.

Twenty-two women are suing the state in Zurawski v. Texas. Many of the plaintiffs said that they nearly died due to pregnancy complications that could have been prevented with a medically necessary abortion. They argue the abortion ban’s medical exceptions are unclear, tying doctors’ hands and threatening them with life in prison if they perform an abortion the state deems premature.

The lead plaintiff, Amanda Zurawski, said she nearly died of sepsis last year after her doctor delayed terminating her pregnancy. She developed cervical insufficiency, and her daughter would not live.

“My doctors didn’t feel safe enough to intervene as long as her heart was beating or until I was
sick enough for the ethics board at the hospital to consider my life at risk and permit the
standard healthcare I needed at that point—an abortion,” she told lawmakers in April.

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The Texas Supreme Court hears oral arguments in Zurawski v. Texas on Nov. 28, 2023.

Some of the 19 women shared similar harrowing stories outside the Texas Supreme Court on Tuesday.

Kaitlyn Kash considers her daughter a miracle after multiple miscarriages — but that birth nearly took Kash’s own life.

“After she was born, my placenta wouldn’t deliver. And I was hemorrhaging,” Kash said. “I lost over half of my blood volume after the delivery of my daughter.”

The plaintiffs said doctors need clearer guidance in law to know when they can intervene in these situations.

“The abortion bans as they exist today subject physicians like my clients to the most extreme penalties imaginable — life in prison and loss of their medical license. And while there is technically a medical exception to the bans, no one knows what it means, and the state won’t tell us,” said Molly Duane, an attorney for the Center for Reproductive Rights, to the Supreme Court Tuesday.

Texas’ Human Life Protection Act of 2021 states that doctors are not prohibited from performing abortions if they determine with “reasonable medical judgment” that the woman’s pregnancy poses “a risk of death or…serious risk of substantial impairment of a major bodily function.”

Duane argued that “reasonable judgment” standard is insufficient, arguing instead for a more deference to doctors acting in good faith to serve their patients.

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Plaintiffs, doctors, and attorneys address the press outside the Texas Supreme Court on Nov. 28, 2023.

The state and supporters of the ban argue the law’s language is sufficient to allow doctors to perform abortions when necessary. While they acknowledge some confusion may arise, they argue clarification should fall on medical boards, not courts.

“You’re gonna have to draw a line somewhere, and there are going to be some hard calls,” attorney for the state Beth Klusmann said. “But with allowing reasonable medical judgment, you avoid the possibility of getting it wrong and ending up in prison…as long as your judgment is reasonable, you should be fine under this law.”

Texas Alliance for Life pointed to data from Texas Health and Human Services that shows 41 abortions have been performed under the ban’s medical exceptions since the ban went into effect.

“We know that doctors are intervening and they are not being disciplined or prosecuted for that intervention,” Texas Alliance for Life’s Amy O’Donnell said. “There is nothing in law that says a woman’s death has to be imminent that she has to become septic or that her baby’s heart has to stop beating before a doctor can intervene and exercise reasonable medical judgment to save the life of the mother.”

In August, a Travis County court sided with the plaintiffs and issued an injunction allowing doctors to exercise greater freedom without fear of violating the medical exceptions in the law. That injunction is on hold pending the state’s appeal, however.

Before Tuesday’s hearing, forty Texas companies and business leaders entered the fight against Texas’ abortion ban, filing a brief with the Texas Supreme Court that argues the “ambiguity” in the law’s medical exceptions cost the state an estimated $14.5 billion in lost revenue every year.

Austin-based dating app giant Bumble led the effort, submitting an amicus brief ahead of the high court’s arguments in Zurawski v. Texas.

“We feel it’s our duty not just to provide our workforce with access to reproductive health care, but to speak out – and speak loudly – against the retrogression of women’s rights,” Bumble founder and CEO Whitney Wolfe Herd said. “Texas’s confusing medical exceptions increase business costs, drive away talent, and threaten workforce diversity and well-being.”

Dozens of other companies signed onto the brief, including South by Southwest, Zilker Properties, ATX Television Festival and Central Presbyterian Church.

The brief cites research from the Institute for Women’s Policy Research (IWPR) to arrive at their claim that Texas’ abortion ban costs the state nearly $15 billion annually. They assert that the ban translates to women earning less, taking more time off work, and leaving the workforce.

IWPR’s research estimates more than 80,000 women between the ages of 15 and 44 could enter the workforce without the abortion ban.

“An uncertain and confusing Texas regulatory environment is creating professional and personal difficulties for those who work and travel in Texas, as well as adversely impacting employee recruitment and retention, and creating obstacles for attracting new businesses, visitors and events,” law firm Reed Smith explained.

Supporters of Texas’ abortion ban argue the law does not preclude doctors from performing medically necessary abortions. Rather, they say doctors are unfamiliar with the law’s exceptions.

“These stories are heartbreaking, they’re tragedies,” Texas Right to Life’s John Seago said. “Those kind of medical emergency situations clearly can be fixed by education…we have to fill in that gap to protect mothers and their children to make sure that our laws are actually protecting life, not jeopardizing life.”

The Texas Supreme Court could have the final word, but that may come as late as June.

Millions from lawsuit settlements fund steps to fight Texas opioid crisis

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The Opioid Abatement Fund Council (OAFC) announced measures to distribute tens of millions in opioid settlement funds to Texas communities and hospital districts to address the opioid crisis on Tuesday.

OAFC is a council dedicated to making sure statewide opioid settlement agreements are allocated fairly to “remediate the opioid crisis.” The Texas Comptroller’s office provides administrative support to the Council.

Texas Comptroller Glenn Hegar, who also serves as the chairman of the OAFC, praised OAFC’s decisions in approving abatement strategies, grant plans, and funding rules.

“I want to thank the Council members for their efforts in developing strategies that are designed to have an immediate impact,” said Hegar in a press release. “The grant plans take a multifaceted approach to treat Texans most at risk of overdose, increase substance use prevention and awareness among parents and students, and support our behavioral health workforce.”

Stefanie Turner, founder of nonprofit organization Texas Against Fentanyl (TXAF), lost her son Tucker Turner two years ago to fentanyl poisoning. Fentanyl is a synthetic opioid. Turner feels the distribution of funds from OAFC were a long time coming.

“The council has had this money for over a year and a half,” Turner said. “I’m grateful today that they were able to release some of the funds.”

Texas Attorney General Ken Paxton has reached numerous settlements that have totaled to over $2.9 billion with companies revolving around their involvement in opioid manufacturing or distribution since 2020.

“15% of the money goes back to local governments who have been at the front lines of this crisis in the state of Texas,” Hegar said. “15% of the money goes to the state legislature, to appropriate to spend on this crisis. And then 70% goes to a council which is administered by my office at the comptroller’s office.”

Over the course of next year, OAFC’s laid out three plans to tackle the opioid crisis using $25 million for each following initiative:

  • Distribute Naloxone, a drug meant to reverse opioid overdoses
  • Raise awareness of substance abuse and prevention for grade school students and guardians
  • Reinforce training, recruitment and retention, and certification assistance for the behavioral health workforce

The emphasis on educating the youth on substance abuse is critical according to Tuner to prevent others from suffering the same fate as Turner’s son.

“My son didn’t get an opportunity to sit in this auditorium and hear the dangers of this,” Turner said. “We didn’t know about it at all.”

Directed by state law, the OAFC will distribute an estimated $166.7 million in opioid settlement funds to more than 150 hospital districts over an estimated 18 years.

Lawyers for foster care children ask judge to hit state with extreme penalty

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A hearing is scheduled Monday in an ongoing lawsuit over how the state handles children in foster care. Lawyers for some of those children are asking the judge to hit Texas with an extreme penalty.

The hearing is the latest development in a legal battle has been going on for more than a decade. The state has already been ordered to pay fines for not meeting requirements outlined by a federal judge.

Some of the complaints focus on how the state handles “children without placement.” Critics point to kids being housed in hotels, medications not being properly managed, and a slow response to abuse allegations. 

Bob Garrett, Austin Bureau Chief for the Dallas Morning News, has followed the case for more than a decade. He spoke with State of Texas host Josh Hinkle about the importance of the upcoming hearing.

Josh Hinkle: You’ve been covering this story for years. What are the main problems that have led up to Monday’s hearing?

Bob Garrett: The biggest problem if you had to point to this one is the children’s that we used to sleep in CPS offices. And that was prohibited by the legislature. But they stay in hotels or motels or churches or makeshift settings babysat 24 hours a day, seven days a week by CPS workers. And that is straining those workers as you can imagine, I think about 40% of them, according to the the judges monitors, are spending 35 hours or more a month on just this sort of babysitting child watch duty, rather than doing their normal jobs, which is to be the eyes and ears for these kids, making sure they’re safe and do and being their advocates in court.

Josh Hinkle: The judge in this case has ordered the state to take action before. Have her orders led to any changes?

Bob Garrett: I think they have I mean, I think even the children’s lawyers and the judge’s monitors acknowledge there have been a lot of improvements. But there’s about a half dozen areas they say Texas has just been recalcitrant and slow and they’re demanding that Texas get popped.

Josh Hinkle: We talked about some of the problems. How does the state defend itself?

Bob Garrett: Well, the state of course, under Greg Abbott, as Attorney General fought this lawsuit tooth and nail, tried to get it killed, did not succeed, knocked out about half of the judge’s remedy about five years ago on appeal to the appellate court in New Orleans. For a while Governor Abbott tried to play along and say okay, we will comply. But earlier this year, he went to a much different strategy hiring and Gibson, Dunn & Crutcher, the wife of one of the Fifth Circuit judges. Gave them a $7 million basic amount, a bar tab you might call it, and said let’s let’s fight this more and see if we can get out of this lawsuit. So that’s the drama. In other states, these suits have lasted they can last decades. This one is, you know, 14 years going on, 14 years old. And so that’s the state of saying first of all, the states should not be interfered with by a federal judge. And secondly, that we’ve gotten better.

Josh Hinkle: Now lawyers for the children are asking for parts of the foster care program to be put into receivership we, what does that actually mean? I mean, that’s a term I don’t think a lot of people were familiar with if they haven’t been following this for that 14-year saga that you’re talking about.

Bob Garrett: Well, you know, receivership is usually in a bankruptcy of a private company to take charge of the assets. In this instance, it would be appointees of the federal judge Janice Graham Jack, who would actually run parts of the foster care program. That’s pretty unprecedented. It’s not clear she’s going to do that. Only one place as it happened before is Washington, DC back in the 1990s.

Josh Hinkle: Any indication of what to expect on Monday?

Bob Garrett: Well, I think we’re gonna be there all week and the children’s lawyers are going to put on a bunch of witnesses and the state is going to put on even more witnesses. So it’s going to be kind of a mini trial over whether the state of Texas should be held in contempt of court for just dragging its feet on improving foster care.

Border policy negotiations stall on Capitol Hill

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Work toward a deal on border and immigration policy is at a stalemate in the U.S. Senate. The impasse is delaying the passage of funding for aid to Ukraine and Israel.

Republicans are demanding tougher border security policies in exchange for their support for President Biden’s $106 supplemental funding request. That request includes aid for Ukraine and Israel.

“Republicans will not allow the supplemental appropriation to proceed unless there is satisfactory policy changes that are designed to stop or stem the flow of people across the border,” Senator John Cornyn, R-Texas, said.

Democrats call the demands unreasonable and accuse Republicans of holding essential aid hostage for political gain.

“Pitting vulnerable groups against each other, Ukrainians fighting an unjust invasion and asylum seekers fleeing persecution is a recipe for bad policy making,” Sen. Mazie Hirono, D-Hawaii, said.

The calendar adds complication to the negotiations. Lawmakers are scheduled to start their Christmas break in less than two weeks.

Texas Congressman Chip Roy called on lawmakers to work until they reach a deal, even if they have to give up their holiday break. But he and other Republicans drew a line in the sand that underscores why an agreement is unlikely.

“If the word Ukraine is uttered on the floor of the House of Representatives before we have secured the border passed HR 2 out of the Senate, with the President signing it with metrics attached, that is an utter fail by Republicans,” Roy said at a news conference.

“I want to be completely clear, we must secure the border, there cannot be any equivocation about it. There cannot be any half measures,” Roy added.

Democrats tried to add citizenship for Dreamers to the proposal. Republicans shut that down.

“This is not an immigration negotiation,” Sen. Lindsay Graham, R-South Carolina, said.

Democrats noted that immigration reform has stalled in Congress for decades.

“It’s been 37 years since there has been comprehensive immigration reform,” Rep. Veronica Escobar, D-Texas, said.

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