Texas abortion case heard before state's highest court, as more women join lawsuit

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When the Center for Reproductive Rights first announced the lawsuit against Texas in March, there were five patient plaintiffs. Now there are 20. / NPR

On Tuesday, the Texas Supreme Court considered this question: Are the state's abortion laws harming women when they face pregnancy complications?

The case, brought by the Center for Reproductive Rights, has grown to include 22 plaintiffs, including 20 patients and two physicians. They are suing Texas, arguing that the medical exceptions in the state's abortion bans are too narrow to protect patients with complicated pregnancies. Texas Attorney General Ken Paxton is fiercely defending the state's current abortion laws and arguing that the case should be dismissed.

At a lively hearing in Austin on Tuesday, the full panel of Texas Supreme Court justices considered whether to apply a temporary injunction that a lower court judge ruled should be in place. That injunction would give doctors greater discretion to perform abortions when a doctor determines that a woman's health is threatened or that a fetus has a condition that could be fatal. It would make more people eligible for exceptions to Texas's abortion bans, but it would not overturn those laws.

Liz Sepper, a professor at Texas Law, says during the hour-long hearing, the justices seemed convinced that the plaintiffs had standing to sue, but not particularly eager to take on the substantive questions in the case. "I also got a sense that some of the justices were convinced that the Texas bans are contradictory and lack the kind of clarity that allow doctors to apply them in emergency situations," Sepper says.

She says a decision could come in the next few weeks or months, as soon the justices can come to an agreement. "This case, I think, became more tangled the more that the justices pulled the thread," she says. "And so they have to find a way out of the tangle."

Throughout the hearing, several of the justices seemed sympathetic to the stories of patients who faced difficult medical circumstances because of their pregnancies.

Dr. Dani Mathisen, 28, is one of seven new plaintiffs who joined the case earlier this month. She is in her medical residency as an OB-GYN and comes from a family of physicians, so when she was pregnant in 2021 and getting a detailed ultrasound test at 18 weeks gestation, she knew something was very wrong.

Mathisen was watching the monitor as the sonographer did the anatomy scan. She saw something was wrong with the spine of the fetus, then the heart, then kidneys. She repeatedly asked, "Can you show me that again?" But the ultrasound tech said she would have to wait to talk to the doctor, who was actually Mathisen's aunt.

When she and her doctor spoke after the scan, "I think I asked one question," Mathisen recalls. "I said, 'Is it lethal?' And she said yes."

Mathisen and her husband had been looking forward to becoming parents, but now she knew she wanted an abortion and would have to travel outside of Texas to get it.

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Dr. Dani Mathisen and her husband were happy about their pregnancy in 2021, before they got a devastating diagnosis. / Dani Mathisen

This was in September 2021 before the federal high court overturned the constitutional right to an abortion for the whole country, but after the Texas law known as SB 8 went into effect. SB 8 banned most abortions after six weeks of pregnancy and says anyone helping someone get an abortion can be sued. Doctors can lose their medical licenses.

Mathisen says she didn't know where to start with calling clinics out of state and figuring out flights, rental cars and hotels. Her mother is also a doctor, and she took charge.

"My mom was just like, 'Take a Xanax, I will have it figured out when you wake up,'" Mathisen says.

Mathisen's mother made arrangements for her to have the procedure in New Mexico. That is not technically illegal under Texas law (although some counties are trying to ban traveling through them for abortions.) But Mathisen remained worried, knowing that SB 8 aims at people who help patients get abortions. It's sometimes called "the bounty hunter law."

"There was this tiny goblin in the back of my head going, 'Your mom's going to go to jail for this,'" Mathisen says.

Mathisen was able to go to New Mexico for an abortion. Some of the other plaintiffs were not able to travel. Two developed sepsis while waiting for Texas hospitals to approve abortion procedures. One had such severe blood clotting, her limbs began to turn purple, then black.

Texas Attorney General Ken Paxton's office has not responded to multiple requests from NPR for comment on the new plaintiffs, but in filings, lawyers for the state argue that these women were not harmed by the state's abortion laws. They say the law is clear, the exception is sufficient as is, and suggest that doctors were responsible for any harms the patients claim.

On Tuesday, Beth Klusmann of the Texas attorney general's office and Molly Duane of the Center for Reproductive Rights presented their cases and were peppered with questions from the justices. The body is made up of nine elected judges who serve staggered six-year terms; they are all Republicans. Some have been on the state's highest court for more than a decade; some are recently elected. There are a few possible ways they could rule, court watchers say.

• They could uphold the lower court's injunction until the case can be fully heard in April. This would broaden the medical exception to abortion bans in Texas at least until the spring.
• They could leave the status quo in place – with a narrow medical exception – and say the case should be heard in full in April.
• They could leave the status quo in place, letting the narrow exceptions to the laws stand, and signal that they believe Texas will win on the merits, likely prompting a motion to dismiss the case in the lower court.

This case has grown over the course of 2023. In March, there were five patients and two OB-GYNs who were the plaintiffs in this case; in May, there were 13 patients, and now, in November, there are 20 patients suing Texas over its abortion exception.

Mathisen says joining the lawsuit is important to her: "I don't just have a sad story, but I'm doing something with that sad story."

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Dr. Dani Mathisen is doing her OB-GYN residency in Hawaii, and she is in her third trimester of a healthy pregnancy. / Dani Mathisen

And there is also a happy coda for Dr. Dani Mathisen: She is about 30 weeks into a healthy pregnancy.

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