Story by John McCormack
On August 23, 2022, Amanda Zurawski of Austin, Texas, went to the hospital with a life-threatening pregnancy complication. She received terrible treatment from medical providers.
When an expectant mother’s water breaks just shy of 18 weeks of pregnancy — as happened to Zurawski — the standard of medical care includes immediately offering to deliver the baby because that condition places the mother at risk of death or serious bodily harm.
But that is not the standard of care that Amanda Zurawski received. She was sent home “because the hospital was concerned that providing an abortion without signs of acute infection may not fall within the Emergent Medical Condition Exception in Texas’s abortion bans,” according to a lawsuit filed earlier this month by the Center for Reproductive Rights against the State of Texas on behalf of Zurawski and other women. The hospital did not induce delivery until she returned with a high fever (a sign of sepsis); a secondary infection sent her to the ICU for three days; and scar tissue caused by the infections caused one fallopian tube to be permanently closed.
People on both sides of the abortion debate agree that Zurawski was provided terrible treatment that endangered her life and health. They disagree about why.
A pregnant woman’s water breaking before viability is a life-threatening condition because “it’s very, very hard to predict who’s going to get really sick really fast,” Dr. Ingrid Skop, a pro-life obstetrician-gynecologist based in Texas, told National Review in a phone interview. An infection is often present before it can be detected. As Skop, who also serves as director of medical affairs for the Charlotte Lozier Institute, the research affiliate of the largest national pro-life group (Susan B. Anthony Pro-Life America), told NR back in July 2022: “I say this as a pro-life physician: It is appropriate to deliver at that point. Because we know that likelihood that four days, six days [later], she’s going to be clinically infected. We know that the likelihood this child was going to make it to be born alive, to stay alive, not die in the neonatal period, is super low.” Despite the very low odds of the baby’s surviving, sometimes a mother will choose “expectant management” — watchful waiting — but as Skop said: “If [the mother] wants delivery at the time of initial diagnosis, it is the standard of care to do so and is allowed by all state pro-life laws.”
The lawsuit filed by the Center for Reproductive Rights begins by saying the crisis experienced by women such as Zurawski is a “direct result of Texas’s abortion bans.” If you dig into the full 92-page document, however, you see that the organization admits that the law does not require hospitals to wait to act until a life-threatening condition becomes dire.
The lawsuit acknowledges that the medical emergency “exception does not require that any of the risks to the pregnant person be imminent. To the contrary, the exception only requires that a physician certify that the patient is ‘in danger of death’ or has a condition that creates ‘a serious risk of substantial impairment of a major bodily function.’” The lawsuit thus correctly contradicts false reporting in the media that Texas’s “medical emergency” exception is undefined or that the law requires doctors to delay care until a life-threatening condition puts the mother in imminent peril of death or injury.
The Center for Reproductive Rights lawsuit says that “physicians are over-complying with the laws to the detriment of their patients’ lives and health,” but it blames such “over-compliance” on “understandable confusion” resulting from language in the law.
The lawsuit notes that the Texas law known as S.B. 8 — which bans abortions after six weeks of pregnancy and may be enforced only via civil lawsuits — simply requires a physician to certify in good faith that he believes there is a medical emergency.
However, Texas’s criminal post-Dobbs abortion law, which took effect on August 25, 2022, includes language in its exception about doctors’ exercising “reasonable medical judgment” — a term defined as “a medical judgment made by a reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical conditions involved.” The lawsuit concludes that “a physician cannot knowingly violate the ban if she acts in good faith reliance on the exception,” but it says hospitals and doctors nevertheless worry that their judgment could be questioned.
Dr. Skop said there is no good reason why the “reasonable medical judgment” language should be confusing to hospitals. It’s the standard they always practice under — a standard that doctors and hospitals commonly invoke to protect themselves in malpractice cases. Furthermore, Texas has had a ban on abortions later than 22 weeks of pregnancy (20 weeks post-fertilization) in effect since 2013, and that 2013 law has the same language in its exception about “reasonable medical judgment.” According to one study from 2015, with medical intervention, three-quarters of premature infants born at 22 weeks of pregnancy did not survive, and the same was true of two-thirds of infants born at 23 weeks. Yet there were no reports over the past decade of doctors hesitating to induce delivery a little later than 22 weeks when needed to protect the life of the mother.
“There was never confusion until now,” said Skop. “The media misinformation machine went into overdrive — suddenly, it has confused people.”
Examples abound of dangerous misinformation about abortion laws. Activists, journalists, and abortion doctors have stoked fears that Texas’s abortion bans might require doctors to wait until an ectopic pregnancy ruptures to treat it even though the laws explicitly exclude any treatment of ectopic pregnancy from the definition of abortion. Many activists and journalists have spread the false claim that in other life-threatening situations pro-life laws require doctors to wait until a pregnant woman’s life is in imminent danger of death or injury. But, as the Center for Reproductive Rights lawsuit acknowledges, Texas’s “exception does not require that any of the risks to the pregnant person be imminent.”
Hospitals should have no reasonable fear of prosecution for immediately treating life-threatening conditions. Skop points out that for decades before Roe and in the months since Dobbs, “There has never been a doctor prosecuted under this situation ever in Texas when they were doing what they thought was right for a patient” in a life-threatening situation. The hospital that mistreated Amanda Zurawski is not named in the lawsuit, but if, presumably, it is located in Travis County (home to Austin), where she resides, its behavior appears especially indefensible. Texas’s post-Dobbs criminal abortion ban did not take effect until two days after the incident of her water breaking, and although Texas has a pre-Roe abortion ban on the books that might have been enforceable by local prosecutors before August 25, the district attorney in Travis County had announced in early July that he would not enforce laws banning abortion. (District attorneys in other large Texas counties, including Dallas, Bexar, and Fort Bend, have made similar announcements.)
Fear of a hypothetical frivolous lawsuit that would certainly be dismissed is not a good reason for hospital attorneys to advise their clients to endanger the lives of women. In the 18 months since Texas’s six-week abortion ban took effect, the only person known to have been sued under it was an abortion doctor who wrote a Washington Post op-ed in September 2021 suggesting he had performed an illegal elective abortion — a deliberate attempt to draw a legal challenge. John Seago, the president of Texas Right to Life, the state’s largest pro-life group, has said Texas law allows immediately inducing delivery when a pregnant woman’s water breaks before viability; he also said those who delayed care for Zurawski were guilty of “medical malpractice.” The Charlotte Lozier Institute has explained in a paper written by Dr. Skop that the standard of care involves offering to immediately deliver a baby in this scenario.
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Not all hospital administrators and attorneys in Texas are placing unnecessary and dangerous restrictions on treating pregnant women with life-threatening pregnancy complications. But there’s little reason to think that hospitals that are committing malpractice will admit their error and reverse course without someone in a position of authority getting them to do so.
As Tim Carney writes in the Washington Examiner, debating the root cause of the problem is secondary to fixing it, and the Texas Department of Health could render the lawsuit moot by clarifying the law for hospitals. “The Texas State Department of Health would be an ideal candidate” for doing just that, Skop said, but it has not.
Since June, Skop has been urging the Texas Medical Board, the Texas Medical Association, and the attorney general to issue clear guidance. National Review editorialized in August:
Guidance from attorneys general should make four key points: (1) When a life-threatening condition arises in pregnancy, treatment may be immediately provided — there is no legal requirement to wait until a pregnant woman’s condition becomes dire or a threat becomes imminent. (2) Life-threatening cases include — but are not limited to — conditions such as premature rupture of membranes, severe pre-eclampsia, and other situations discussed in the Charlotte Lozier Institute paper. (3) “Reasonable medical judgment” is a deferential standard that is not intended to tie the hands of doctors. (4) The exception applies to physical — not emotional or mental — health conditions. . . .
The editorial called on people in other positions of power, such as medical boards, health departments, and on up to governors, to rectify the problem. “Pro-life laws protected both mother and child before Roe, and they do so after Dobbs,” the editorial concluded. “The urgent task of pro-life statesmen is to ensure that those laws are properly understood and followed.”
Yet, months later, very little has been done by those in positions of authority to ensure that hospitals are providing proper care.
In October, Texas governor Greg Abbott said that something “really does need to be done” to “clarify what it means to protect the life of the mother” because he had “seen some other situations that some women are going through where they’re not getting the health care they need to protect their life. . . . Our goal is to make sure we protect the lives of both the mother and the baby. And there’s been too many allegations that have been made about ways in which the lives of the mother are not being protected. And so that must be clarified.” Asked by National Review last week about what has been or should be done to clarify the law, Governor Abbott’s spokesperson did not provide a comment and did not grant an interview request.
The office of Texas attorney general Ken Paxton, who is a defendant named in the Center for Reproductive Rights lawsuit, did not respond to an email requesting comment.
It’s not clear how long it will take for the Center for Reproductive Rights lawsuit to be resolved. In addition to seeking clarity about life-threatening situations, the plaintiffs seek a ruling in favor of a right to abortion when an unborn child “is unlikely to survive the pregnancy and sustain life after birth.” Texas’s abortion laws do not include an exception for cases when severe fetal abnormality is the sole reason for an abortion (though such cases often also involve threats to the mother’s life or physical health under which abortion is permitted), so the case will certainly end up going to trial.
Texas should not wait for the lawsuit to work its way through the courts but instead make it a priority to state plainly that its abortion law allows immediate treatment of women with life-threatening conditions such as the one Amanda Zurawski faced. Skop said that guidance explicitly covering some of the most common conditions “would be a great idea,” but no list could ever be comprehensive because cases will inevitably occur that “fall outside of the parameters that we may think of.” That’s the reason why the law ultimately leaves the decision to doctors’ reasonable medical judgment.
Texas Right to Life president John Seago told NR in a phone interview on Tuesday that his organization is “working with legislators to address this breakdown in communication to doctors, and this doesn’t necessarily require tweaking” the law, but “making sure government agencies have the clarity and the instruction to help in this situation to clarify what the law is.”
That clarity can’t come soon enough, and it behooves everyone in a position of authority to provide it.