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Texas Supreme Court to hear case on state abortion laws and pregnancy complications

SARAH MCCAMMON, HOST:

This week, the Texas Supreme Court will consider this question. Are the state's abortion laws harming women when they face pregnancy complications? The case posing that question was brought by the Center for Reproductive Rights. Texas Attorney General Ken Paxton is fiercely defending the state's current abortion laws. Here to talk about it is NPR's Selena Simmons-Duffin. Hi, Selena.

SELENA SIMMONS-DUFFIN, BYLINE: Hi, Sarah.

MCCAMMON: We both have been to Texas reporting on this. I was in Austin when this case was announced in March, but new plaintiffs keep joining the case. Remind us, if you would, where the case stands and what it's all about.

SIMMONS-DUFFIN: Right. So when you went down in March, there were five patients and two OB-GYNs who were the plaintiffs in this case. In May, there were 13 patients, and as of this month, there are 20 patients suing Texas over its abortion exception. So the current medical exception to the abortion ban in the state says abortion is allowed when someone's life or a "major bodily function" - that's a quote - is in danger. But these women argue that language doesn't work to protect women when complications come up. And that's what's at the heart of this case.

MCCAMMON: You spoke to one of the new plaintiffs recently. Who is she, and what's her story?

SIMMONS-DUFFIN: Well, she is actually a physician, an OB-GYN currently in residency. Her name is Dani Mathisen, and she's 28 years old. Back in May of 2021, she and her husband were really excited when they found out they were pregnant for the first time, and everything was going fine until about September of 2021. That's when she had an ultrasound. That's called the anatomy scan, which happens around halfway through a pregnancy. She could tell things weren't right as soon as the sonographer started.

DANI MATHISEN: You know, as she scanned through my abdomen, I saw like, oh, there's something wrong with her spine. Can you show me that again? And she's like, no, I can't, but the doctor will come and talk to you. And then, oh, there's something wrong with her heart, oh, with her kidneys. And I kept asking the sonographer to show me again, because I could read the scan myself.

SIMMONS-DUFFIN: Dani comes from a family of physicians. Her OB-GYN was actually her aunt, and after the scan they talked.

MATHISEN: I think I asked one question. I said, is it lethal? And she said yes.

SIMMONS-DUFFIN: Dani knew she wanted to have an abortion, but she knew it wouldn't be possible in Texas.

MCCAMMON: Right, because, Selena, this happened - let's look back - in 2021, in the fall. This was before the overturning of Roe v. Wade, but it was after Texas passed that law banning most abortions after six weeks of pregnancy, the law, known as SB 8, sometimes called the bounty hunter law. How did that fit into her pregnancy and her medical situation?

SIMMONS-DUFFIN: Well, she was 18 weeks of pregnancy, so she knew she had no chance of getting an abortion in Texas. She didn't know where to start calling clinics out of state, figuring out flights and rental cars and hotels. Her mom is also a doctor, and she took charge.

MATHISEN: My mom was just like, take a Xanax. I will have it figured out when you wake up. And I'm very, very, incredibly lucky for that. But it was also very scary for me because she's a physician, and with SB 8, it is the people who help people who get abortions that are punished. And so even though we were leaving the state and theoretically we weren't doing anything illegal, there was, you know, the tiny goblin in the back of my head going, your mom's going to go to jail for this.

SIMMONS-DUFFIN: She did get to New Mexico. She was able to have an abortion there. And she says when she heard about this lawsuit, she wanted to get involved right away. She says she feels relieved now to be one of the plaintiffs.

MATHISEN: I don't just have a sad story, but I'm doing something with that sad story.

SIMMONS-DUFFIN: And there is a happy coda here. She actually has a healthy pregnancy right now. She's coming up on 30 weeks.

MCCAMMON: It's always so good to hear that after these really sad stories. You know, Selena, you also spoke to an attorney who helped another one of the new plaintiffs in this case. What did you learn?

SIMMONS-DUFFIN: All right, so the patient here is Cristina Nunez. And her story is different. It's not about pregnancy complication. It's about how pregnancy can make other health conditions a lot worse. Cristina is 36 years old. She has had hypertension and diabetes since she was a child. A few years ago, she had to start dialysis as well. She's also a trained nurse. She's originally from Mexico. She speaks only Spanish. She was shocked to find out she was pregnant in May of this year, and her health quickly worsened. This is Kylee Sunderlin, an attorney who worked with her this past spring.

KYLEE SUNDERLIN: After Cristina learned she was pregnant, her OB-GYN and a maternal fetal specialist told her that if she decided to continue the pregnancy, it was extremely likely that either she, the baby or both would die. And so, as a trained nurse, Cristina made an informed decision to end her pregnancy.

SIMMONS-DUFFIN: But of course, again, she could not do that in Texas. She lives in El Paso. So while she was trying to figure out how to get to New Mexico for an abortion, her health got worse and worse. She started needing to do dialysis every day. She had painful blood clots. She felt like she didn't have the time to travel to see a doctor.

SUNDERLIN: Instead of being able to leave the state to access care, she had to go to the emergency room because the thrombosis was turning her limbs purple and then eventually black.

SIMMONS-DUFFIN: She went to an ER on June 12, but the hospital staff would not give her an abortion. So after days of waiting in the hospital, Cristina Nunez got connected with a helpline run by the group If/When/How. They provide free and confidential legal services. And that is how Kylee Sunderlin got involved and helped get her to a different hospital, where she finally got the abortion. In the weeks after she was discharged, her health slowly improved. Sunderlin told me through the whole ordeal, Cristina was extremely composed. She was asking for clarity, advocating for herself, and now she's joined this lawsuit suing the state for the role its abortion laws played in delaying her care.

MCCAMMON: And how is the state of Texas responding?

SIMMONS-DUFFIN: I have not gotten any response from the Texas attorney general's office to my request for comment on the new plaintiffs. The Texas Medical Board, which is also a defendant in this case, has told me it will not comment on pending litigation. But in a hearing that I attended in Austin in July, lawyers for the attorney general's office in Texas argued that the women had not been harmed by the state's laws. They say the law is clear. The exception is sufficient as is and suggested that the doctors were responsible for any harms the patients claimed. In filings, they actually went through each patient's story one by one and explained why the state's laws were not to blame.

MCCAMMON: So there have been a lot of developments in this case. This week, there's a hearing before the Texas Supreme Court. What are you expecting?

SIMMONS-DUFFIN: So this is scheduled for Tuesday. It's going to be livestreamed. The plaintiffs are not asking for the abortion bans to go away, to be clear. They're asking for the medical exception to be broadened. But the justices aren't necessarily going to take that on. They're just considering whether to apply a temporary injunction. A district judge in Austin said yes, there should be an injunction and set a court date for next April. So the question of the injunction is really what this hearing is about.

MCCAMMON: Yeah. And what could be the outcome of this hearing, the impact?

SIMMONS-DUFFIN: Well, I should mention that all of the nine justices here are elected Republicans. The Texas Supreme Court could say there's no need for an injunction. Let's keep the law as is for now and leave it there. Then the case would go to trial in April as scheduled. But the court could also dig into the merits of this case. So if the justices do that, for example, if they show they're inclined to agree with the state, that could mean the state files for a motion to dismiss the case. There's no need for a trial if Texas is ultimately going to win anyway, and there's no way to know really which way the justices are going to go, what they're going to make of these patients' ordeals and how much they're going to want to wade into this right now. We'll have to watch the hearing to find out.

MCCAMMON: NPR's Selena Simmons-Duffin, thanks so much.

SIMMONS-DUFFIN: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Sarah McCammon
Sarah McCammon is a National Correspondent covering the Mid-Atlantic and Southeast for NPR. Her work focuses on political, social and cultural divides in America, including abortion and reproductive rights, and the intersections of politics and religion. She's also a frequent guest host for NPR news magazines, podcasts and special coverage.
Selena Simmons-Duffin reports on health policy for NPR.