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Abortion case goes before Texas Supreme Court, as more women sue state : Shots -
Health News Dr. Dani Mathisen is one of 20 patients who say abortion bans in
Texas harmed them during complicated pregnancies. Attorneys in the lawsuit will
argue before the Texas Supreme Court Tuesday.


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REPRODUCTIVE RIGHTS IN AMERICA


TEXAS ABORTION CASE HEARD BEFORE STATE'S HIGHEST COURT, AS MORE WOMEN JOIN
LAWSUIT

November 28, 20235:00 AM ET
Heard on Morning Edition

Selena Simmons-Duffin

TEXAS ABORTION CASE HEARD BEFORE STATE'S HIGHEST COURT, AS MORE WOMEN JOIN
LAWSUIT

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When the Center for Reproductive Rights first announced the lawsuit against
Texas in March, there were five patient plaintiffs. Now there are 20. Sarah
McCammon/NPR hide caption

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Sarah McCammon/NPR


When the Center for Reproductive Rights first announced the lawsuit against
Texas in March, there were five patient plaintiffs. Now there are 20.

Sarah McCammon/NPR

On Tuesday, the Texas Supreme Court considered this question: Are the state's
abortion laws harming women when they face pregnancy complications?

The case, brought by the Center for Reproductive Rights, has grown to include 22
plaintiffs, including 20 patients and two physicians. They are suing Texas,
arguing that the medical exceptions in the state's abortion bans are too narrow
to protect patients with complicated pregnancies. Texas Attorney General Ken
Paxton is fiercely defending the state's current abortion laws and arguing that
the case should be dismissed.

At a lively hearing in Austin on Tuesday, the full panel of Texas Supreme Court
justices considered whether to apply a temporary injunction that a lower court
judge ruled should be in place. That injunction would give doctors greater
discretion to perform abortions when a doctor determines that a woman's health
is threatened or that a fetus has a condition that could be fatal. It would make
more people eligible for exceptions to Texas's abortion bans, but it would not
overturn those laws.

Sponsor Message



Liz Sepper, a professor at Texas Law, says during the hour-long hearing, the
justices seemed convinced that the plaintiffs had standing to sue, but not
particularly eager to take on the substantive questions in the case. "I also got
a sense that some of the justices were convinced that the Texas bans are
contradictory and lack the kind of clarity that allow doctors to apply them in
emergency situations," Sepper says.

She says a decision could come in the next few weeks or months, as soon the
justices can come to an agreement. "This case, I think, became more tangled the
more that the justices pulled the thread," she says. "And so they have to find a
way out of the tangle."

Throughout the hearing, several of the justices seemed sympathetic to the
stories of patients who faced difficult medical circumstances because of their
pregnancies.

Dr. Dani Mathisen, 28, is one of seven new plaintiffs who joined the case
earlier this month. She is in her medical residency as an OB-GYN and comes from
a family of physicians, so when she was pregnant in 2021 and getting a detailed
ultrasound test at 18 weeks gestation, she knew something was very wrong.

Mathisen was watching the monitor as the sonographer did the anatomy scan. She
saw something was wrong with the spine of the fetus, then the heart, then
kidneys. She repeatedly asked, "Can you show me that again?" But the ultrasound
tech said she would have to wait to talk to the doctor, who was actually
Mathisen's aunt.



When she and her doctor spoke after the scan, "I think I asked one question,"
Mathisen recalls. "I said, 'Is it lethal?' And she said yes."

Mathisen and her husband had been looking forward to becoming parents, but now
she knew she wanted an abortion and would have to travel outside of Texas to get
it.

Enlarge this image

Dr. Dani Mathisen and her husband were happy about their pregnancy in 2021,
before they got a devastating diagnosis. Dani Mathisen hide caption

toggle caption
Dani Mathisen


Dr. Dani Mathisen and her husband were happy about their pregnancy in 2021,
before they got a devastating diagnosis.

Dani Mathisen

This was in September 2021 before the federal high court overturned the
constitutional right to an abortion for the whole country, but after the Texas
law known as SB 8 went into effect. SB 8 banned most abortions after six weeks
of pregnancy and says anyone helping someone get an abortion can be sued.
Doctors can lose their medical licenses.

Mathisen says she didn't know where to start with calling clinics out of state
and figuring out flights, rental cars and hotels. Her mother is also a doctor,
and she took charge.

"My mom was just like, 'Take a Xanax, I will have it figured out when you wake
up,'" Mathisen says.

Mathisen's mother made arrangements for her to have the procedure in New Mexico.
That is not technically illegal under Texas law (although some counties are
trying to ban traveling through them for abortions.) But Mathisen remained
worried, knowing that SB 8 aims at people who help patients get abortions. It's
sometimes called "the bounty hunter law."

"There was this tiny goblin in the back of my head going, 'Your mom's going to
go to jail for this,'" Mathisen says.

Mathisen was able to go to New Mexico for an abortion. Some of the other
plaintiffs were not able to travel. Two developed sepsis while waiting for Texas
hospitals to approve abortion procedures. One had such severe blood clotting,
her limbs began to turn purple, then black.

Texas Attorney General Ken Paxton's office has not responded to multiple
requests from NPR for comment on the new plaintiffs, but in filings, lawyers for
the state argue that these women were not harmed by the state's abortion laws.
They say the law is clear, the exception is sufficient as is, and suggest that
doctors were responsible for any harms the patients claim.



On Tuesday, Beth Klusmann of the Texas attorney general's office and Molly Duane
of the Center for Reproductive Rights presented their cases and were peppered
with questions from the justices. The body is made up of nine elected judges who
serve staggered six-year terms; they are all Republicans. Some have been on the
state's highest court for more than a decade; some are recently elected. There
are a few possible ways they could rule, court watchers say.

 * They could uphold the lower court's injunction until the case can be fully
   heard in April. This would broaden the medical exception to abortion bans in
   Texas at least until the spring.
 * They could leave the status quo in place – with a narrow medical exception –
   and say the case should be heard in full in April.
 * They could leave the status quo in place, letting the narrow exceptions to
   the laws stand, and signal that they believe Texas will win on the merits,
   likely prompting a motion to dismiss the case in the lower court.

This case has grown over the course of 2023. In March, there were five patients
and two OB-GYNs who were the plaintiffs in this case; in May, there were 13
patients, and now, in November, there are 20 patients suing Texas over its
abortion exception.

Mathisen says joining the lawsuit is important to her: "I don't just have a sad
story, but I'm doing something with that sad story."

Enlarge this image

Dr. Dani Mathisen is doing her OB-GYN residency in Hawaii, and she is in her
third trimester of a healthy pregnancy. Dani Mathisen hide caption

toggle caption
Dani Mathisen


Dr. Dani Mathisen is doing her OB-GYN residency in Hawaii, and she is in her
third trimester of a healthy pregnancy.

Dani Mathisen

And there is also a happy coda for Dr. Dani Mathisen: She is about 30 weeks into
a healthy pregnancy.

UPDATE NOV. 28, 2023



This story was updated at 3:46 p.m. to reflect some of what happened in the
hearing.



 * Texas abortion law
 * Texas Attorney General Ken Paxton
 * Center for Reproductive Rights
 * Abortion rights

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