Jessica Bernardo and her husband began planning for the birth of their first child last August, as soon as she found out she was pregnant. They’d been trying to start a family for years and were overjoyed at the news that she was expecting.
Her husband installed a baby gate at top of their stairs in the early weeks of her first trimester. At night, they lay in bed listening to audiobooks about the stages of pregnancy.
When at 14 weeks they learned their child would most likely have Down syndrome, they decided to name her Emma, which means whole.
“We began researching how to best support a baby, our baby, with a difference,” Bernardo said.
But just one week later, they received devastating news: Emma had a fatal fetal condition known as anasarca and would not survive. Bernardo also learned that because of her pregnancy, she was at high risk of developing mirror syndrome, a rare condition that could lead to a buildup of liquid in her heart and chest, respiratory distress, and renal failure.
“Everything we celebrated, hoped for, and dreamed of came crashing down that day,” Bernardo said.
To preserve her own health, Bernardo needed an abortion, but in Texas, her doctor couldn’t give her one.
“Because Emma’s heart was still beating, our only choice was to leave the state,” Bernardo recalled at a press conference last week. Bernardo is one of countless Texans who, when faced with the loss of a pregnancy, was denied standard-of-care medical treatment due to the state’s anti-abortion laws.
Last week, she along with seven others, joined a lawsuit seeking to change that situation. The lawsuit, Zurawski v. State of Texas, filed in March, asks the state to further clarify under what conditions a doctor can provide an abortion during a medical emergency.
“I never want another human being to go through what I went through. It was worse than cruel.”
Ultimately Bernardo and her husband were able to get her an abortion out of state at a clinic in Seattle, but Bernardo said the experience left her heartbroken and enraged. “I never want another human being to go through what I went through,” she said. “It was worse than cruel.”
When treating a patient experiencing a pregnancy loss, a doctor uses the same tools and procedures as they would during an elective termination. They might prescribe the abortion pills mifepristone, which stops the hormone that allows the pregnancy to grow, and misoprostol, which induces contractions, allowing the patient to expel the pregnancy. Or they might perform a vacuum aspiration in the first trimester, or a dilation and evacuation procedure in the second.
Women’s health experts say these medical interventions are essential for those suffering from pregnancy loss. Without them patients are at risk of developing serious, life-threatening complications.
But under Texas’s strict abortion restrictions, doctors say they’re no longer able to provide this type of medical care. That leaves women like Bernardo to suffer.
“Despite multiple repeated requests, Texas has done nothing to clarify the scope of its abortion ban, and every day real people are suffering,” said Molly Duane, lead attorney for the Center for Reproductive Rights, the national legal advocacy group that filed the case.
In addition to amending the lawsuit to include more women, Duane said they were seeking a temporary injunction that would allow people with pregnancy complications to receive abortion care while the courts consider the case.
“This is a public health crisis,” Duane said at the press conference, “one that is pervasive, ongoing, and government-inflicted.”
Texas lawmakers had an opportunity to clarify the law during the regular legislative session that ended on Monday, but failed to act.
In an interview with the Texas Observer in February, state Representative Donna Howard D-Austin, chairwoman of the Texas Women’s Health Caucus, said she would work with Texas doctors to draft legislation that would prioritize “damage control.”
“Recognizing that we have a Republican majority, we are not going to be able to repeal what has been put in place,” Howard said at the time, “but we want to put exceptions in place that will allow us to deliver the best care possible.”
She filed a bill to specify that doctors are allowed to provide an abortion “to preserve the pregnant patient’s life and/or future fertility,” or “physical or mental health.” The proposed language also clarified that an abortion could be provided if requested by the patient “because of a lethal fetal anomaly or diagnosis,” or a “life-limiting diagnosis.”
That language would have amended the current statute that says abortions may be performed by doctors when a “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.” Since its passage, doctors have repeatedly argued that the law’s vague language, coupled with its steep criminal penalties—up to $100,000 in fines and life in prison—is keeping them from intervening until a pregnant person’s health has so deteriorated that their life is imminently at risk.
“People with pregnancy complications cannot be forced to the brink of death or made to go out of the state to obtain necessary care,” Duane said.
But Howard’s bill failed to even get a committee hearing. Neither state Representative Stephanie Klick, R-Fort Worth, nor state Senator Bryan Hughes, R-Mineola, chairs of the respective House and Senate committees who handled the bills, responded to the Texas Observer’s request for comment asking why.
“People with pregnancy complications cannot be forced to the brink of death or made to go out of the state to obtain necessary care.”
At a press conference in April, the anti-abortion group Texas Alliance for Life celebrated their success in blocking legislation that would have clarified the language for medical exceptions.
“I am pleased to say that none of the bills that want to weaken our pro-life laws have been sent in any committee to be heard,” spokesperson Amy O’Donnell said, “And we are going to keep it that way.”
O’Donnell said that if doctors need clarification, that clarification should come not from the Legislature, but from other bodies such as the Texas Medical Board.
Yet evidence is mounting that Texas anti-abortion laws prevent doctors from providing standard-of-care treatment. Bernardo and her 12 co-plaintiffs were all denied care for their pregnancy complications as a result of Texas law.
State Senator Carol Alvarado, D-Houston, who filed the Senate version of the bill, said that she’s disappointed the Legislature failed to act.
“When the Lege passed the trigger ban, a lot of us warned that the exception was too vague and undefined and that could have a chilling effect on doctors’ ability to treat their patients, leading to delay or even a denial of care,” she said, “and what we predicted came true.”
However, Alvarado did point to one small legislative victory: House Bill 3058, sponsored by state Representative Ann Johnson, D-Houston. The bill creates legal protections for doctors who provide medical care to patients in two specific cases: “in response to an ectopic pregnancy or a previable premature rupture of membranes.”
Even with HB 3058 in place, Bernardo would have still been denied care, as would many other Texas women whose situations don’t fall under those narrow definitions.
“My heart breaks for the women whose stories have been told publicly and the countless more we don’t know about,” Alvarado said. But she called it a first step, to provide legal protections to doctors whose patients fall within those limits.
“In this climate, you take what you can get,” Alvarado said.
