“There’s gonna be some hard calls.”
That’s how a lawyer with the Texas Attorney General’s office callously shrugged off the question of how, and indeed whether, doctors are allowed to save the lives of pregnant women during a hearing at the state Supreme Court on Tuesday.
Tuesday’s hearing put the state’s disregard for its own responsibility to protect and defend “life” in devastating relief.
The lawyer, Texas Assistant Solicitor General Beth Klusman, was tasked with arguing Texas Attorney General Ken Paxton’s appeal before the state’s’ highest court — an appeal in which Paxton and his office assert that Texas has no responsibility to clarify so-called “exceptions” to the state’s abortion bans for pregnant people with potentially fatal complications. Instead, the attorney general’s office argues that people who experience life-threatening trauma under the state’s abortion bans should not take their concerns up with the state of Texas. Instead, they should sue their OB-GYNs for failing to risk life in prison, the loss of their medical licenses, and/or $100,000 or more in fines.
In other words: If Texans lose their children, their fertility, or even their lives because medical professionals are under constant threat of prosecution from the state, it’s simply not Texas’ problem.
Tuesday’s hearing put the state’s disregard for its own responsibility to protect and defend “life” — the ostensible reason behind Texas’ abortion bans — in devastating relief. If there are “hard calls” to be made around life-threatening pregnancy conditions, those calls are only made more difficult by anti-abortion politicians’ cruel dedication to stamping out any hint of compassion for the medical professionals and patients forced to navigate the bans’ vague, oppressive language.
I can’t imagine the gall it took for Klusman to stand up in front of dozens of Texas women who nearly lost their lives — including some who have likely lost their ability to bear children in the future — and describe their near-death ordeals as “hard calls.” But that’s just what she did, saying that “if a woman is bleeding” or “has amniotic fluid running down her legs,” and doctors are not sure whether providing a life-saving abortion will land them in prison for life, “then the problem is not with the law. It is with the doctors.”
In fact, Klusman argued, Texas women don’t even have standing to sue the state at all unless they are actively experiencing a pregnancy in crisis, right that second. As if laws deliberately crafted to force Texans to risk their lives to carry pregnancies to term are simply accidents of fate. As if all the backers of these abortion bans can do is take a kind of “welp, them’s the breaks” stance toward the unimaginable harm they have visited on at least dozens of Texans already, and untold numbers of Texans to come.
The Texas women challenging the state’s ban hope to prevent others from going through the same trauma and heartache they experienced.
This wholesale abdication of responsibility is horrifyingly typical of Attorney General Ken Paxton’s eschewal of what ought to be a “pro-life” commitment: ensuring Texans have healthy pregnancies, or at least are able to access medical care that preserves their future fertility if they experience pregnancy loss. But Paxton’s office has already rejected that commitment. Earlier this year, he argued that Texas has no obligation of care toward a state prison employee who lost a wanted pregnancy after she was prevented from leaving her post by her supervisors. And speaking of sheer gall: in that case, Paxton even argued that — contrary to Texas statute — fetuses aren’t people, releasing Texas from any responsibility in the matter. (Whereas, in Paxton’s mind, a multimillion-dollar settlement with his whistleblowing former employees is the state’s — and Texas taxpayers’ — burden to bear.)
Judges on the all-Republican Texas Supreme Court seemed somewhat open Tuesday to supporting the state’s heartless refusal to grapple with the consequences of its own abortion bans, asking again and again why Texas women didn’t simply sue their doctors for negligence instead of asking the state to clarify its own statutory language. The answer is both legal and deeply personal: the Texas women challenging the state’s ban hope to prevent others from going through the same trauma and heartache they experienced. And a lower Texas court has already provided clarifying language on life-threatening exceptions; the plaintiffs simply want that language to stand. But Paxton and the state of Texas would wipe those clarifications off the books, relegating doctors and patients to a state of indefinite limbo around how, or whether, doctors are allowed to provide abortion care to Texans with complicated pregnancies. It may be months before the Texas Supreme Court rules on the case. In the meantime, it’s appalling that the state is going to such extreme lengths to block these highly limited, extremely specific, incredibly important clarifications around a small but significant subset of pregnancies. Its efforts show how powerfully invested Texas’ highest-ranking politicians are in perpetuating fear over preserving life. It is a ghoulish, cruel tack aimed, very literally, at forcing Texans to give birth or die trying. That’s not “pro-life.” That’s a death wish.
Andrea Grimes
Andrea Grimes is a journalist and activist living in Austin, Texas. 
