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 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 ( 2024 )

Supreme Court of Texas
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No. 23-0629
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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
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On Direct Appeal from the
353rd District Court, Travis County, Texas
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JUSTICE LEHRMANN, concurring.
In the wake of the United States Supreme Court’s decision to
overturn Roe v. Wade, the Texas Legislature has enacted one of the most
restrictive abortion bans in the country. And whatever my personal
views may be about how restrictive abortion statutes in Texas “should”
be, it is the Legislature’s prerogative to make that determination. Cf.
Tex. Health Presbyterian Hosp. of Denton v. D.A., 569 S.W.3d 126, 137
(Tex. 2018) (noting that in construing statutes, courts should avoid
“usurping the legislature’s role of deciding what the law should be”).
However, notwithstanding the shifting legal landscape in this area, the
Legislature’s authority is not without limits. Certainly, a woman’s right
to a life-saving abortion is one such limit. But it is not the only limit—
at least not in Texas. I join the Court’s opinion today because it explains
that a physician need not wait until her patient is on the verge of death
to perform either a life-saving abortion or one that would prevent serious
physical impairment. Indeed, we reiterate that imminence is not
required. Ante at 3, 25; In re State, 682 S.W.3d 890, 894 (Tex. 2023). We
also make clear that one other physician’s opinion that the performing
doctor used “reasonable medical judgment” is sufficient corroboration to
support the performing doctor’s action. See ante at 22. Hopefully, this
will provide physicians with much-needed guidance about what the law
requires. However, as Justice Busby explains in his concurrence, this
does not mean that the statute is immune from further legal challenge.
I write separately to explain why, in my view, the Court’s interpretation
allows the Texas Human Life Protection Act to withstand today’s
challenge and to note the limited nature of that challenge.
As an initial matter, I recognize that the plaintiffs’ petition is
replete with references to the Act’s lack of clarity and to confusion
among practitioners regarding the scope of the exception at issue,
leading to “significant chilling [in] the provision of medically necessary
abortion.” Nevertheless, the plaintiffs affirmatively disclaim any
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assertion that the statute is unconstitutionally “void for vagueness.” See
Johnson v. United States, 576 U.S. 591, 595 (2015) (“Our cases establish
that the Government violates [due process] by taking away someone’s
life, liberty, or property under a criminal law so vague that it fails to
give ordinary people fair notice of the conduct it punishes, or so
standardless that it invites arbitrary enforcement.”); Kolender v.
Lawson, 461 U.S. 352, 357 (1983) (describing the “void-for-vagueness
doctrine”). That is, we are not asked to determine whether the Act’s lack
of clarity, standing alone, caused it to violate the plaintiffs’, or anyone
else’s, constitutional rights. Thus, the Court’s opinion rightly does not
address, and in turn does not foreclose, such a challenge. See post at 5–6
(Busby, J., concurring).
Further, we are not asked whether an abortion lawfully could—
or should—have been provided to any of the patient-plaintiffs at any
particular stage of their pregnancies, and none of the plaintiffs seek
redress for past harms. Rather, the plaintiffs seek: (1) a declaration
clarifying the scope of the Act’s exception “consistent with the Texas
Constitution”; (2) a judgment that enforcing the Act contrary to that
declaration would be ultra vires; (3) a judgment that enforcing the Act
contrary to that declaration would violate the Texas Constitution as
applied to pregnant people and physicians; and (4) temporary and
permanent relief enjoining the defendants from enforcing the Act in a
manner contrary to the judgment. Given the severe criminal, civil, and
occupational penalties associated with a violation of the Act, and Texas
physicians’ corresponding and justifiable concerns about complying with
the Act while providing quality medical care, the plaintiffs’ request for
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clarity is understandable. See TEX. HEALTH & SAFETY CODE
§ 170A.004(b) (“An offense under this section is a felony of the second
degree, except that the offense is a felony of the first degree if an unborn
child dies as a result of the offense.”); id. § 170A.005(b) (subjecting a
person who violates the Act to “a civil penalty of not less than $100,000
for each violation”); id. § 170A.007 (requiring the revocation of the
license of a health care professional who violates the Act).
As the case is presented to us, the Court’s opinion provides what
clarity it can. The Act permits an abortion when, in the physician’s
reasonable medical judgment, a woman has a life-threatening physical
condition that places her at risk of death or serious physical impairment
unless an abortion is performed. Id. § 170A.002(b). As the Court
confirms, “the law does not require that a woman’s death be imminent
or that she first suffer physical impairment. 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.” Ante at 3; see
also id. at 25 (explaining that “the ‘life-threatening physical condition’
does not require a manifestation of that risk”). Nor does the law impose
liability on a physician merely because not every doctor would have
concluded that a life-saving abortion was warranted under the
circumstances; rather, the State must “prove that no reasonable
physician would have” reached that conclusion. Id. at 22. So construed,
and only so construed, the Act survives the due-course challenge
presented. However, an abortion ban any more restrictive or narrowly
construed would, in my view, be inherently violative of both the United
States Constitution and the Texas Constitution.
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The Texas Constitution enumerates a citizen’s right to life in the
Texas Bill of Rights. TEX. CONST. art. I, § 19 (“No citizen of this State
shall be deprived of life, liberty, property, privileges or immunities, or in
any manner disfranchised, except by the due course of the law of the
land.”). This Court’s early, post-ratification opinions uniformly read
Article I, Section 19 to provide protection for substantive, as well as
procedural, rights. See Milliken v. Weatherford, 54 Tex. 388, 394 (1881)
(invalidating a city ordinance that violated Due Course Clause
substantive liberty protections or “common rights”).
Texas’s Due Course Clause operates today as it did then. It serves
as a constitutional safeguard against the State’s infringement of
citizens’ fundamental rights—the most profound of which is a citizen’s
enumerated right to life. Where a fundamental right or suspect class is
at issue, as here, state action must “be narrowly tailored to serve a
compelling government interest.” Richards v. League of United Latin
Am. Citizens, 868 S.W.2d 306, 311 (Tex. 1993).1
As the Oklahoma and North Dakota Supreme Courts have
already concluded based on analogous state constitutional provisions, a
general abortion ban cannot survive constitutional scrutiny unless it
excepts “the limited instances of life-saving and health-preserving
1 The Act expressly, and as a matter of constitutional necessity, does
not apply when a fetus has died in utero. TEX. HEALTH & SAFETY CODE
§ 245.002(1) (defining “abortion” to mean “the act of using or prescribing an
instrument, a drug, a medicine, or any other substance, device, or means with
the intent to cause the death of an unborn child of a woman known to be
pregnant”); id. § 170A.001(3) (defining “pregnant” to mean “the female human
reproductive condition of having a living unborn child within the female’s
body” (emphasis added)).
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circumstances.” Wrigley v. Romanick, 988 N.W.2d 231, 245 (N.D. 2023);
see also Okla. Call for Reprod. Just. v. Drummond, 526 P.3d 1123, 1130
(Okla. 2023). Moreover, requiring a patient “to be in actual and present
danger” or “to wait until there is a medical emergency would further
endanger the life of the pregnant woman and does not serve a compelling
state interest.” Drummond, 526 P.3d at 1131. Texas’s Constitution
similarly “creates an inherent right of a pregnant woman to terminate
a pregnancy when necessary to preserve her life.” See id. at 1130.
Separately, the Fifth and Fourteenth Amendments to the United
States Constitution provide citizens similar protection against state
deprivation of life, liberty, or property without due process of law. The
Due Process Clause protects both substantive rights guaranteed by the
first eight Amendments and unenumerated fundamental rights that
have “deep roots in our history and tradition” and are essential to our
Nation’s “scheme of ordered liberty.” Timbs v. Indiana, 139 S. Ct. 682,
686–87 (2019) (citations omitted). A woman’s right to access life-saving
medical care without undue interference by the government is deeply
rooted in our history and tradition, essential to our Nation’s scheme of
ordered liberty, and enshrined in the explicit language of the Fifth and
Fourteenth Amendments. See U.S. CONST. amend. V (“No person shall
be . . . deprived of life, liberty, or property, without due process of
law . . . .”); id. amend. XIV (“[N]or shall any State deprive any person of
life, liberty, or property without due process of law . . . .”).
Indeed, it should go without saying that, although the U.S.
Supreme Court has concluded that abortion is not a constitutional right,
Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 292 (2022), a
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pregnant patient retains a liberty interest in access to medical care,
including abortion, to protect her life and health. Several Supreme
Court Justices have already articulated this point. Id. at 339 n.2
(Kavanaugh, J., concurring) (reiterating Justice Rehnquist’s assertion
in his dissent in Roe v. Wade that “an exception to a State’s restriction
on abortion would be constitutionally required when an abortion is
necessary to save the life of the mother”); see also Roe v. Wade, 410 U.S.
113, 173 (1973) (Rehnquist, J., dissenting) (“If the Texas statute were to
prohibit an abortion even where the mother’s life is in jeopardy, I have
little doubt that such a statute would lack a rational relation to a valid
state objective . . . .”).
Moreover, in jurisdictions where abortion was generally
prohibited before Roe v. Wade, exceptions to preserve the mother’s life
represented a co-equal and indivisible feature of that legal history and
tradition.2 Texas’s 1856 enactment of Texas Penal Code articles 536 to
541 serves as an example. Article 541, in particular, stated: “nothing
contained in this chapter shall be deemed to apply to the case of an
abortion procured or attempted to be procured by medical advice for the
purpose of saving the life of the mother.” TEX. PENAL CODE art. 541
2 As laid out in Appendices A and B to the Supreme Court’s opinion in
Dobbs, almost every state and territory that banned or criminalized abortion
before Roe included an explicit exception for the life of the mother. While a
selective few of the early statutes did not contain an explicit exception, they
required that the abortion be performed willfully and maliciously. See, e.g.,
CONN. STAT. TIT. 20, § 14 (1821). Hence, the scienter requirement provided a
means to justify an abortion performed to protect the life of the mother. See
Stephen G. Gilles, What Does Dobbs Mean for the Constitutional Right to a
Life-or-Health-Preserving Abortion?, 92 MISS. L.J. 271, 293 (2023) (citing
language in Dobbs).
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(1857). Texas law continued to permit abortions for that purpose in the
century that followed. See id. arts. 641–46 (1879); id. arts. 1071–76
(1895); id. arts. 1191–96 (1911); TEX. REV. CIV. STAT. art. 4512.6 (1925).
In accordance with that longstanding provision, in 1927 the Texas Court
of Criminal Appeals held that a physician in Texas had “a right to
produce an abortion . . . if his acts were directed towards saving the life
of the mother of the child.” Ex parte Vick, 292 S.W. 889, 890 (Tex. Crim.
App. 1927).
This exception is not only a bedrock principle in Texas’s legal
tradition, but it also reflects a broad and longstanding national
consensus. See, e.g., Commonwealth v. Sholes, 95 Mass. (13 Allen) 554,
558 (1866) (concluding that an abortion “done by a surgeon for the
purpose of saving the life of the woman” is among the “circumstances
which would furnish a lawful justification”); 2 F. Wharton, CRIMINAL
LAW § 1230, p. 206 (7th ed. 1874) (“Of course it is a defense that the
destruction of the child’s life was necessary to save that of the mother.”).
Simply put, the very same legal history and tradition relied upon in
Dobbs to support states’ authority to restrict abortion access
simultaneously enshrines a woman’s constitutional right to a life-
preserving abortion.
It is undoubtedly the prerogative of the political branches to
determine what abortion restrictions Texans will tolerate, within
constitutional parameters. And it is not the judiciary’s role to strike
down laws that survive constitutional scrutiny, however narrowly. In
this instance, the Legislature has enacted both a general rule and an
exception to that rule which, in tandem, survive the constitutional
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challenge the plaintiffs present. Critically, the exception ensures: (1) a
pregnant patient can rely on her physician’s reasonable medical
judgment that an abortion is medically necessary to prevent her death
or serious physical impairment—before she is in imminent danger of
such consequences; and (2) a physician can exercise her reasonable
medical judgment without fear that she will be prosecuted if the State
unearths a physician who would have reached a different conclusion
under the circumstances. Absent such parameters, the statute would
fall short. See Drummond, 526 P.3d at 1131.
Although this area of law will inevitably require further
development in the wake of Dobbs, it bears reiterating that the
immediate duty to articulate more detailed standards and best practices
consistent with “reasonable medical judgment” rests squarely on the
medical community—not lawyers, judges, legislators, or anyone else
lacking medical expertise. See In re State, 682 S.W.3d at 894–95.
Physicians alone have the requisite education, training, and experience
to articulate and exercise reasonable medical judgment in these life-and-
death situations. Therefore, pursuant to our decision in this case,
immediate and ongoing efforts to formulate applicable standards and
best practices are essential to ensure that women in Texas receive the
timely, quality medical care that they deserve and to which they are
entitled. The further the medical community goes in undertaking this
sensitive task now, the better equipped courts will be to objectively
evaluate a physician’s conduct in the future.
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With these additional thoughts, I concur in the Court’s judgment
and join its opinion.
Debra H. Lehrmann
Justice
OPINION FILED: May 31, 2024
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