State v. Zurawski

690 S.W.3d 644

STATE of Texas; Ken Paxton, in his official capacity as Attorney General of Texas; Texas Medical Board; and Stephen Brint Carlton, in his official capacity as Executive Director of the Texas Medical Board, Appellants,

v.Amanda ZURAWSKI; Lauren Miller; Lauren Hall; Anna Zargarian; Ashley Brandt; Kylie Beaton; Jessica Bernardo; Samantha Casiano; Austin Dennard, D.O.; Taylor Edwards; Kiersten Hogan; Lauren Van Vleet; Elizabeth Weller; Damla Karsan, M.D., on behalf of herself and her patients; and Judy Levison, M.D., M.P.H., on behalf of herself and her patients, Appellees

No. 23-0629

Supreme Court of Texas.

Argued November 28, 2023

OPINION DELIVERED: May 31, 2024

West Codenotes

Negative Treatment Reconsidered

Tex. Health & Safety Code Ann. §§ 170A.001, 170A.002, 171.002(3), 171.205

On Direct Appeal from the 353rd District Court, Travis County, Texas

Claire N. Abrahamson, Astrid Ackerman, J. Alexander Lawrence, Marc Hearron, Aditya V. Kamdar, Molly Duane, Jamie A. Levitt, Austin Kaplan, Nicolas Kabat, for Appellees.

Christopher Maska, Paul Benjamin Linton, for Amici Curiae Members of the Texas State Legislature, Texas Alliance for Life, Inc., Texas Catholic Conference of Bishops, and Texans for Life.

Adriaan Tieleman Jansse, San Antonio, Jonathan Miller, Bryan, for Amicus Curiae Current and Former Local Elected Officials in Texas.

Clark Richards, Austin, Molly Meegan, Maher Mahmood, Came Flaxman, for Amicus Curiae American College of Obstetricians and Gynecologists (ACOG).

Alexander Wolf, Houston, Jamie Lisagor, Drew ?. Padley, Alanna Peterson, for Amicus Curiae National Network of Abortion Funds (NNAF).

Brent Webster, Houston, Angela V. Colmenero, Beth E. Klusmann, Austin, Johnathan D. Stone, Amy Pletscher, Lanora C. Pettit, for Appellants Ken Paxton, in his official capacity as Attorney General of Texas, Stephen Brint Carlton, in his official capacity as Executive Director of the Texas Medical Board, The Texas Medical Board.

Lindsey Cohan, Austin, for Amicus Curiae Historians with Expertise in the History of Abortion Medicine, Law, and Regulation.

Kelsey Machado, Houston, for Amicus Curiae Plaintiffs’ Partners and Mothers.

Heather Gebelin Hacker, Bethany Rothwell, Andrew B. Stephens, for Amicus Curiae Alliance for Hippocratic Medicine.

Charlotte D. Stewart, Payal Shah, Corinne R. Moini, Lauren Israel Sinrod, Breanna Weber, Christian De Vos, Jordan T. Pamlanye, Gerson H. Smoger, Shira D. Sandler, Janice Mac Avoy, for Amicus Curiae Physicians for Human Rights, Inc.

Matthew Berton Henneman, Houston, James G. Cavoli, Carmit Patrone, Allison N. Kempf, for Amicus Curiae State Constitutional Law Professors and Scholars.

Hayley MacMillen, Michelle S. Kallen, Debbie L. Berman, James R. Dunnam, Caroline G. Hirst, for Amicus Curiae National Council of Jewish Women (NCJW), et al.

Rochelle Garza, Houston, Dustin Rynders, Suzannah Philips, Claudia Center, for Amicus Curiae Disability Rights Education and Defense Fund (DREDF), et al.

Pilar Whitaker, Alexandra S. Thompson, Arielle Humphries, Avatara Smith-Carrington, for Amicus Curiae The NAACP Legal Defense & Educational Fund, Inc.

Brent Webster, Houston, Beth E. Klusmann, Angela V. Colmenero, Austin, Lanora C. Pettit, Amy Pletscher, Sara B. Baumgardner, Johnathan D. Stone, for Appellant The State of Texas.

Jason C.N. Smith, Fort Worth, Wendy J. Murphy, for Amicus Curiae Women’s and Children’s Advocacy Project, Equal Means Equal and the Elizabeth Cady Stanton Trust.

Renu R. George, Galen Sherwin, Ester Murdukhayeva, Karli Eisenberg, Megan O’Neill, Blair Greenwald, Barbara D. Underwood, for Amicus Curiae The States of California, New York, et al.

Allison Hartry, San Antonio, Lindsey Ruff, David A. Barrett, Lauren ?. Goldman, for Amicus Curiae Texas Women Athletes, et al.

Emily Harbison, Houston, Sarah Stewart, Dallas, James C. Martin, Sarah B. Johansen, for Amicus Curiae Bumble, Inc., et al.

Justice Bland delivered the opinion of the Court.

Texas law permits a life-saving abortion. A physician cannot be fined or disciplined for performing an abortion when the physician, exercising reasonable medical judgment, concludes (1) a pregnant woman has a life-threatening physical condition, and (2) that condition poses a risk of death or serious physical impairment unless an abortion is performed. After the United States Supreme Court overturned Roe v. Wade, current Texas law otherwise generally prohibits performing an abortion.

This case comes to us as a direct appeal from a temporary injunction stopping enforcement of Texas’s abortion laws in various circumstances. The plaintiffs include women who suffered serious complications during their pregnancies—situations filled with immense personal heartbreak. The State does not contest that at least some of these complications present life-threatening conditions for which an abortion may be indicated. In amendments to Texas law during the last regular legislative session, the Legislature expressly permitted abortion for one of the pregnancy complications presented in this case. The law can be— and has been—amended to reflect policy choices on abortion. Keeping that in mind, we turn to answer the legal questions this appeal presents.

[1] We hold that Dr. Damla Karsan, a physician-plaintiff in this suit, has standing to challenge the Attorney General’s enforcement of the Human Life Protection Act against her. We further conclude that the Declaratory Judgments Act waives the State’s immunity for a claim that a statute violates the state constitution. Although a party may not sue to seek construction of a statute in the abstract, a court may interpret a statute when it is a necessary part of resolving constitutional claims.

[2] Under the Human Life Protection Act, a woman with a life-threatening physical condition and her physician have the legal authority to proceed with an abortion to save the woman’s life or major bodily function, in the exercise of reasonable medical judgment and with the woman’s informed consent.¹ As our Court recently held, the law does not require that a woman’s death be imminent or that she first suffer physical impairment.² Rather, Texas law permits a physician to address the risk that a life-threatening condition poses before a woman suffers the consequences of that risk. 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.

Given this construction, we conclude that Dr. Karsan has not demonstrated that the part of the Human Life Protection Act that permits life-saving abortion is narrower than the Texas Constitution allows. Because the trial court’s injunction departed from the law without constitutional justification, we vacate its order.

I Facts and Procedural History

A Claims and Contentions

The Center for Reproductive Rights, on behalf of several Texas plaintiffs, sued the State through the Attorney General and the Texas Medical Board, challenging aspects of Texas’s abortion laws. The Center seeks (1) an interpretation of the Texas law that permits life-saving abortions and (2) to rewrite that law to change the circumstances in which Texas law must permit an abortion. Absent judicial adoption of the Center’s preferred state abortion policy, it contends, the state’s laws are unconstitutional.

[3,4] Among the plaintiffs are several Texas women and two physicians who treat pregnant women.³ The Center alleges that the complications the women faced during their pregnancies placed them within existing Texas law that pennits life-saving abortion. However, it alleges, the Texas doctors who treated the women were hesitant to perform abortions that comply with the law for fear of legal consequences. As a result, the Center further alleges, the women either did not receive the abortions that Texas law permits or were delayed in receiving abortions in Texas or out of state.

The Center sought relief against the State, the Attorney General, and the Texas Medical Board, seeking an injunction to stop enforcement of three sets of Texas abortion laws:

• The Human Life Protection Act, found in Chapter 170A of the Health and Safety Code, which imposes civil and criminal liability against abortion providers who violate it;

• Former Texas Penal Code articles 1191-1196,⁴ last amended in 1925, and now codified at Chapter 6 1/2 of the revised civil statutes, making it a criminal offense to provide an abortion; and

• The Heartbeat Act, found in Health and Safety Code Sections 171.203205, a private-enforcement statute.

Each of these laws permits abortions performed to save the life of the mother, though using different language. The Center acknowledges as much, but it argues that the laws are unclear. As a result, it contends, there are physicians in Texas who have refused to provide abortions that Texas law currently permits.

The State sought to dismiss the case through a plea to the jurisdiction, urging that:

• No state official has enforced any Texas abortion law against any of these plaintiffs.

• The state officials named in this case—the Attorney General and the Director of the Texas Medical Board—have no authority to enforce Texas criminal laws.

• The trial court had no jurisdiction to interpret the law under the Declaratory Judgments Act.

• Current Texas law permitting lifesaving abortion is not more limiting than the Texas Constitution permits.

The State also invoked sovereign immunity, arguing that the Declaratory Judgments Act does not waive the State’s immunity when a party sues to seek an interpretation of the law in connection with hypothetical facts.

B The Trial Court Hearing

The trial court heard testimony from four patients, one physician, and three experts.

Amanda Zurawski...