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Physicians for Human Rights Fights Texas Abortion Ban in Amicus Brief Filed in Zurawski v. State of Texas

Texas ban threatens doctors’ ability to uphold ethical obligations and care for patients

A ban on abortions in Texas has made it nearly impossible for doctors in the state to care for their patients who need medically necessary care, even in cases where a pregnant patient is at acute risk of dangerous complications or where a fetus will not survive pregnancy, Physicians for Human Rights (PHR) argued this week in an amicus brief filed with the state’s highest court, the Texas Supreme Court. Oral arguments in the case are set to begin on November 28, 2023.

PHR’s brief asks for the Texas Supreme Court to uphold a lower court order preventing the prosecution of clinicians for using their good faith medical judgment in consultation with their patients to perform life or health-saving abortions in accordance with medical ethical guidelines. Zurawski v. State of Texas is the first lawsuit brought on behalf of individuals denied abortions since the U.S. Supreme Court overturned the constitutional right to abortion in June 2022. 

PHR asserts that the confusion and fear sowed by Texas’s punitive law makes it increasingly difficult for clinicians to make the highly-specialized, complex, and often urgent decisions for which they were trained. Under the restrictions, clinicians can face criminal penalties for performing abortions – including fines of at least $100,000, up to 99 years in prison, and revocation of their medical licenses. Coupled with the inclusion of unworkable nonmedical terminology within the restriction’s statutes, the state’s abortion ban directly undermines clinicians’ ability to act in accordance with their ethical obligations, medical standards of care, and patients’ human rights.

“Every day, more patients and physicians are coming forward to share the trauma caused by the unworkable medical exceptions in these bans,” said Payal Shah, JD, director of PHR’s Program on Sexual Violence. “There is an urgent need for the Texas Supreme Court to affirm that clinicians cannot be prosecuted for their good faith medical decisions, taken in consultation with their patients.”

Texas’s abortion bans have disrupted the practice of medicine in the state, exacerbating pregnancy-related mortality and morbidity and straining access to maternal health care, the brief details. The bans have created “maternity care deserts” across the state, forcing patients to travel at great cost or over great distances for care while in crisis and delaying necessary medical care at the risk to patients.

“It is outrageous that pregnant patients are being forced to continue pregnancies where they know their fetus will not survive, but that is what is happening in Texas,”said Counsel of Record Gerson H. Smoger, JD, PhD who also serves as Chair of PHR’s Board of Directors.

The brief details an “abortion double bind” created by Texas’s restrictions. This situation effectively traps clinicians between the threat of criminal penalty for performing an abortion that may not qualify under the state’s medical exceptions, and the risk of malpractice liability for not performing an abortion that could have protected the life and health of a pregnant patient.

“Bans like those in Texas are a trend we’re seeing in state laws across the country, and what this is resulting in is the death and suffering of patients,” added Shah. “If the district court is not affirmed, the environment of fear created by these restrictions will make it impossible for OBGYNs to practice in Texas, severing access to maternity and prenatal care and compounding already severe health disparities.”

The brief shares harrowing examples of how patients are being denied abortions  even in cases where it is clear their fetus would not survive or where they are at acute risk of dangerous complications, showing how Texas’s bans prevent doctors from complying with their ethical obligation to do no harm and respect patients’ rights. PHR’s argument is supported by its April 2023 study, “No One Could Say: Accessing Emergency Obstetrics Information as a Prospective Prenatal Patient in Post-Roe Oklahoma,” published with the Oklahoma Call for Reproductive Justice and the Center for Reproductive Rights. The study documented the impacts of inconsistent laws restricting abortion in Oklahoma on patients and providers and found that no hospital in the state was able to articulate clear, consistent policies for emergency obstetric care to pregnant patients. PHR is continuing to document the challenges clinicians are facing while attempting to provide evidence-based care to pregnant people in other U.S. states with abortion bans, beginning with  Louisiana.

As an organization representing physicians committed to supporting human rights and preventing human rights atrocities, PHR emphasizes within the brief how Texas’s abortion bans and unworkable medical exceptions lead to the state’s violation of international human rights law – including torture and cruel, inhuman, and degrading treatment in specific circumstances – and the impact on clinicians’ ability to practice medicine ethically.

The brief, filed by PHR, was written by Gerson H. Smoger, JD, PhD, Payal Shah, JD, and Christian DeVos, JD, PhD from PHR, and the law firm Fried, Frank, Harris, Shriver & Jacobson LLP. The Fried Frank team included Patrick Foote, Janice Mac Avoy, Corinne Moini, Jordan Pamlanye, Shira Sandler, Laura Israel Sinrod, Charlotte Stewart, Breanna Weber.

Physicians for Human Rights (PHR) is a New York-based advocacy organization that uses science and medicine to prevent mass atrocities and severe human rights violations. Learn more here.

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