Bioethics Forum Essay

Cold Comfort for Texas Obstetricians

In an essay about the recent Texas Supreme Court decision on abortion, John Lantos was correct in stating that the justices refused to issue an order protecting Dr. Damla Karsan and her patient, Kate Cox, whose fetus had trisomy 18, “from prosecution under [Texas’] abortion-banning law,” noting especially that Texas does not permit abortion for lethal fetal anomalies. In their opinion, although the justices wrote that “the pleadings state that Ms. Cox’s doctor—Dr. Damla Karsan—believes Ms. Cox qualifies for an abortion based on the medical-necessity exception,” they held that the doctor’s good faith belief that the statutory requirements had been met did not suffice because Dr. Karsan did not explicitly say that, in her “reasonable medical judgment,” her patient had “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”  [TEX. HEALTH & SAFETY CODE § 170A.002(b)(2)]

As a result, the justices refused to “pre-authorize the abortion.”

Yet, Lantos was misguided in suggesting that the remainder of the opinion offers a path forward if only physicians would exercise “reasonable medical judgment” that their patients faced the statutory level of harm. It may seem reassuring that these justices sought to provide “some clarity,” writing that “[t]he law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient.” (emphasis original) In fact, the justices specifically declined to say any more about what constitutes “reasonable medical judgment.” They did say that women need not be on the brink of death before abortion is permissible. This formal deference to physicians may reflect in part courts’ general reluctance to give prior approval to physicians since the court here stated three times in its opinion that women need not obtain court orders prior to having a qualifying abortion.

The first problem with Lantos’s analysis is that having decided the main issue in the case – whether Kate Cox’s abortion could proceed — all the language that followed was mere dicta, nonbinding statements of limited precedential value. The justices were not promising that an exception would automatically be available when, in a physician’s “reasonable medical judgment,” the woman’s health was at serious risk. Certainly, simply saying the magic words would not suffice to confer immunity, especially since the opinion later said that “[a]n exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion.”  One wonders whether these justices would have discounted Dr. Karman’s words even had she used the statutory language in her attestation. 

The justices’ suggestion that the Texas Medical Board could choose to provide more guidance fails to recognize that the board has rarely provided definitive guidance about the standard of care in any aspect of medical practice. When the board does address what physicians should do in certain practice areas, it typically focuses on procedural issues, often specifying that it did not intend to preclude consideration of other sources of authority on how clinicians should care for patients. Nor should it be reassuring to clinicians seeking to care for their sick pregnant patients that all members of the board are appointed by the governor and are represented by the Texas attorney general.

And there is at least one more problem. The opinion in this case was decided by only three justices of the Texas Supreme Court (out of nine) and issued per curiam (without identifying who wrote it) after necessarily rapid briefing given the immediacy of the case. The decision of these justices to address “reasonable medical judgment” at some length is particularly puzzling since, two weeks earlier, on November 28, 2023, the entire Texas Supreme Court had heard oral arguments in the case of Zurawski v. Texas No. 23-0629.  In that case, the trial court, after hearing extensive testimony from women  who said they had been harmed by “the widespread uncertainty of physicians’ level of discretion under the scope of Texas medical exception provision,” enjoined “abortion bans in any manner that: (i) would prevent the Patient Plaintiffs and pregnant persons throughout Texas from receiving necessary abortion care in connection with an emergent medical condition; (ii) would subject the Physician Plaintiffs and others in Texas to liability for providing necessary abortion care in connection with an emergent medical condition; and (iii) would be inconsistent with the rights of pregnant persons and physicians in Texas under Article I, §§ 3, 3a, and/or 19 of the Texas Constitution . . . .” 

The injunction never went into effect because the Texas attorney general appealed it the same day.  It is almost as if the three justices, by their dicta in denying the Coxes’ and Dr. Karsan’s request for a protective order, were attempting to preempt the deliberations of the entire Texas Supreme Court in Zurawski.

Most troubling of all, physicians’ decisions are always subject to being second-guessed by prosecutors, trial courts, expert witnesses, and juries. Nothing prevents a prosecutor from bringing charges, and juries have enormous discretion in weighing evidence. If this is the path forward for physicians, it is characterized by rocks, IEDs, chasms, and steep drop-offs.

So, my advice is to be cautious, be very cautious, of the dire uncertainty that remains.

Ellen Wright Clayton, JD, MD, is the Craig-Weaver Chair in Pediatrics, core faculty of the Center for Biomedical Ethics and Society, and a professor of law at Vanderbilt University. She is a Hastings Center fellow.