Anyone who has lived under the control of an abusive partner or parent knows that the problem is not just what’s prohibited. It’s what you’re unsure is prohibited. The prospect of punishment instills fear. Vagueness about what will be punished promotes caution. Just in case, the teenager doesn’t hang out with certain friends. The teacher deletes the controversial book from the curriculum.
The doctor decides not to perform an abortion when the patient’s health or life is at risk, but, maybe, not imminently so.
This is what is happening across the 21 states that have banned abortion in all but the direst of circumstances. It’s what happened to Amanda Zurawski, an Austin, Texas, resident who learned at 18 weeks’ gestation that her cervix was prematurely dilated, spelling certain death for her fetus, already named Willow, and posing a grave threat to her own health.
But because there was still fetal cardiac activity, the doctors sent Zurawski home to get sick enough to qualify for an abortion under Texas’s ban. The law permits the procedure only when a patient would otherwise lose “major bodily function” or die. It doesn’t say when that might be. And it makes no allowance for a fatal fetal anomaly.
Zurawski went into sepsis – full-body infection – and spent three days in the ICU. She survived, but it’s unlikely that her fertility did.
In Zurawski v Texas (2023), the Center for Reproductive Rights (CRR) argued on behalf of two doctors and 20 patients that Texas’s statute was so vaguely written that providers could not know whether they were breaking the law – risking penalties as severe as imprisonment – if they did the medically correct thing. The CRR called this failure a violation of the women’s constitutional right to life.
In December 2023, a lower court judge enjoined the law awaiting further clarification and permitted abortion if the doctor’s “good-faith judgment” deemed it necessary. Ken Paxton, Texas’s fanatically anti-choice attorney general, appealed the injunction to the Texas supreme court. And last week that court removed the injunction, ruling that the law is perfectly clear.
The Human Life Protection Act “permits a physician to intervene to address a woman’s life-threatening physical condition before death or serious physical impairment are imminent”, wrote Justice Jane Bland. “A physician who tells a patient, ‘Your life is threatened by a complication that has arisen during your pregnancy, and you may die, or there is a serious risk you will suffer substantial physical impairment unless an abortion is performed,’ and in the same breath states ‘but the law won’t allow me to provide an abortion in these circumstances’ is simply wrong in that legal assessment.”
In other words, if the patient is harmed, it is the doctor’s fault, not the law’s.
Zurawski v Texas was the first lawsuit to challenge a ban on behalf of women with complicated pregnancies since the supreme court overturned Roe v Wade in June 2022. There are certain to be more. At the 4 June hearing of the Democrat-led Senate committee on health, education, labor, and pensions, witnesses gave evidence of what the committee called a national “healthcare nightmare” caused by the bans and the confusion they’re wreaking. In a few places, such as Tennessee, elected officials have suggested that legislators amend the laws to make them easier to understand. But few such proposals have been filed.
In its lawsuit, the CRR asked Texas to tighten the statute. But the justices did not, and did not instruct the legislature to do so. “We are right back where we started,” said an incensed Zurawski.
They may be even further back than that. At a virtual hearing 10 days before the ruling, members of the Texas medical board argued with lawyers and healthcare providers – and with each other – over interpretations of its guidance written to clear up ambiguities in the law. But all the new guidelines did was add a requirement that providers submit profuse documentation justifying their decisions. After the five-hour hearing and hundreds of written comments, everyone agreed on one thing: the irresolution is now worse.
Why don’t lawmakers clarify their statutes? For one thing, they can’t. Most of them wouldn’t know a fallopian tube from a brake fluid line, and even if they did, there’s no way to codify everything that can possibly go wrong in a problem pregnancy or every medical decision that must be made in response. The Texas court said the doctor who opts against an emergency abortion makes the wrong legal assessment. But if most legislators are not doctors, few doctors are also lawyers.
Yet the CRR’s attempt to push the state to amend a bad law to make it a little less bad is the same tactic that the pro-choice legal establishment pursued throughout the Roe years – and look where that got us.
The tactic is not just counterproductive. It’s delusional. The laws’ vagueness is not an oversight, not the result of sloppy or ignorant drafting. Vagueness is the intention. Along with police, prosecutors and civilian vigilantes enforcing the laws, the states are counting on self-policing. They may even hope that providers do less than they are legally permitted.
And if bad things happen – “painful” as that might be, admitted Bland – the state can duck the blame.
Judith Levine is a Brooklyn journalist and essayist, a contributing writer to the Intercept and the author of five books
