More Women Join Lawsuit Challenging Texas’ Abortion Laws

Article by: Eleanor Klibanoff, The Texas Tribune

November 14, 2023

Twenty women are challenging the state’s abortion laws, saying they were unable to get the health care they needed for their medically complex pregnancies.

When Kimberly Manzano’s doctor first noticed some irregularities with her pregnancy, she turned to God, praying constantly for good news. When the diagnosis worsened, she and her husband sought comfort in the Bible’s Book of Hebrews — the book of hope.

When her doctor finally determined her baby could not survive outside the womb, she asked her pastor for advice.

“He said, ‘If you believe your doctor to be a godly man, take what the doctor says as clarity from God in your decision,’” she recalls.

Manzano and her husband, both devout Christians, decided the most loving thing they could do for their son was terminate the pregnancy. It was a difficult decision for the couple, who both considered themselves anti-abortion before this.

But that decision between the Manzanos, their doctor, and God would now have to involve another party — the state of Texas.

Although continuing the pregnancy put her at greater risk for infection and illness, Manzano’s life was not currently in danger, so her doctor would not terminate her pregnancy. Texas’ abortion laws have no explicit exceptions to lethal fetal anomalies.

So she and her husband bought last-minute flights to New Mexico. Her doctor refused to send her medical records to the clinic, instead requiring her to be the go-between.

“I was grieving, I was processing all of this, and then I was also feeling like a criminal,” she recalled recently. “It’s dehumanizing … and it shouldn’t be like this for health care.”

On Tuesday, Manzano and six other women joined an ongoing court challenge to Texas’ abortion laws, bringing the total number of plaintiffs in the lawsuit to 22, including two doctors. The new plaintiffs, like the other patients on the lawsuit, allege they were denied abortion care in Texas for their medically complex pregnancies, including cases where the fetus was not expected to survive after birth. The suit, filed by the Center for Reproductive Rights, claims the state’s near-total ban on abortion violates their rights under the Texas Constitution.

After an emotional hearing in July, a Travis County judge granted a temporary injunction that protected doctors who, acting in their “good faith judgment,” terminate complicated pregnancies. The Texas Office of the Attorney General immediately appealed that ruling, putting it on hold until the Texas Supreme Court hears the case later this month.

“The harm to pregnant women in Texas is continuing every single day,” said Molly Duane, senior staff attorney for the Center for Reproductive Rights. “As more people learn about the lawsuit, they continue to tell us the same things are happening to them.”

Manzano’s experience changed her mind about abortion, and she said she’s sharing her story in hopes of educating people who don’t realize how restrictive the state’s abortion ban is.

“I think I was really naive, thinking the world was one way and going through this and seeing it’s not like that,” she said. “But in the end, God knows my heart. He knows why I’ve been through this, and I’ll have to stand before him one day, and no one else.”

A doctor’s dilemma

From the first time Danielle Mathisen delivered a baby in medical school, she knew she wanted to be an OB/GYN.

She also knew she wanted to be a mother. Mathisen and her husband met playing volleyball in high school in the Fort Worth area and got married in 2019. They tried to time her pregnancy around the intensive medical school schedule and were thrilled when she got pregnant right on schedule during her fourth year.

She was so thrilled that her husband passed out at the first ultrasound appointment.

“He just heard the heartbeat, and the passions of fatherhood overtook him,” she said only half kidding.

Mathisen went in for her anatomy scan at 18 weeks. She’d just finished learning how to perform pregnancy ultrasounds, so immediately, she knew something was wrong. Nothing was where it was supposed to be.

“It felt like an out-of-body experience,” she said. “I thought the wires got crossed, and it was the girl next door’s ultrasound because surely nothing could be wrong with my own pregnancy.”

Mathisen comes from a family of doctors. Her aunt was her OB/GYN, and Mathisen texted her from the exam room, asking if something was wrong. Her aunt sent back one word: Yes.

Mathisen’s daughter had a “laundry list” of diagnoses — a malformed brain, something wrong with the heart, a hole at the bottom of her spine, and only one kidney. She was barely in the first percentile for weight.

“It just kept getting worse, which made the decision easier,” Mathisen said.

But this appointment was in September 2021, just a few weeks after Texas banned abortion after about six weeks of pregnancy. The new law allowed private citizens to sue anyone who “aided or abetted” in a prohibited lawsuit.

Mathisen had been on the other side of these conversations as a medical student, so she knew the fear her aunt was experiencing at that moment.

“We had the most legal conversation that we could have had,” she said. “And that conversation was, ‘I’m sorry, I can’t help you here. But maybe someone in another state could.’ And I knew exactly what she meant.”

Mathisen and her husband went home shattered. Her mom, a doctor, started calling clinics until she found one in New Mexico holding spots open for Texans. They bought first-class tickets, the only ones left, and less than 24 hours after learning this heartbreaking news, they were on their way to Albuquerque. Several people on the flight assumed they were going to Albuquerque for their honeymoon, a fiction they leaned into even after they returned to Texas.

The abortion clinic was still operating under COVID-19 protocols, so Mathisen went in alone. In the exam room, there were journals where other patients had written messages of support — “you’re making the right decision,” and “you’re doing the best you can with the information that you have,” sentiments Mathisen has relied on in the days since.

Mathisen submitted her OB/GYN residency applications on the plane ride back. She’s always wanted to practice medicine in Texas like the rest of her family, but part of her was relieved when she was accepted to a program in Hawaii.

“I felt really let down by Texas. I still feel really let down by Texas,” she said. “It just makes me mad and sad and angry and guilty because I know there are people in Texas that need the care that I know how to provide. But I cannot give it to them there.”

In Hawaii, when she encounters patients facing similar diagnoses, she can offer them the option she was denied — to terminate the pregnancy in a doctor’s office or hospital at whatever point they feel ready to make that decision.

“I say to them, your heart can want one thing, and your brain can know that this is still the right thing to do,” she said. “Your mama heart wants to hold your baby. I want to hold my daughter, I still do. But my brain knows this was the right thing to do.”

Mathisen is pregnant again with another little girl. She hopes to one day be able to return to Texas, work as an OB/GYN, and raise her daughter surrounded by all the vital female doctors who made her who she is. That’s part of why she joined this lawsuit, she said.

“If I can provide a voice or a perspective or a story that resonates with one lawmaker that gets them to change their mind, then I want that to happen,” she said. “I want this to happen to one less Texan.”

Legal challenge continues

When the U.S. Supreme Court overturned Roe v. Wade in June 2022, abortion clinics across Texas immediately closed their doors. This marked the culmination of a decades-long effort to stop Texans from terminating unwanted pregnancies within state lines.

But immediately, the ruling opened a new question about how the law’s narrow exceptions should be applied to medically complex pregnancies. The law allows abortions only when the patient “has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”

Doctors who perform a prohibited abortion face up to life in prison, leading some to delay or deny care because they were unsure if the patient qualified. Some hospitals, fearing legal liability, have increased restrictions on when they allow a doctor to terminate a pregnancy.

As more and more women came forward with stories of wanted pregnancies derailed by medical complications, Gov. Greg Abbott said the Legislature should “clarify what it means to protect the life of the mother.” The Texas Legislature went so far as to affirm doctors’ ability to treat ectopic pregnancies, a nonviable pregnancy where the embryo implants outside the uterus, and preterm premature rupture of the membrane, when a patient’s water breaks before viability.

But the lawsuit from the Center for Reproductive Rights says these protections are not enough to ensure doctors feel safe acting on their best judgment in individual cases.

At the court hearing in July, Dr. Ingrid Skopp, a prominent anti-abortion doctor, agreed patients had received “suboptimal care” since the law went into effect but said, nonetheless, the “law is quite clear.”

“The fault lies with the physicians [who] are not being given guidance by the organizations that usually will give them guidance, the medical societies and the hospital societies,” she said.

The Texas Medical Board, which is a defendant in this case, has not offered clear guidance to doctors on how and when they can terminate pregnancies.

“What is universal in all of the states where abortion is prohibited, and I include in that states that have 6- or 12- or 15-week abortion bans, is that medical exemptions all look pretty similar to Texas’ and in every state, no doctor knows how to interpret them,” said Duane.

The Center for Reproductive Rights has argued that, under the law’s medical exception, women carrying nonviable pregnancies should be able to access abortions in Texas. But as the plaintiffs’ experiences make clear, that’s rarely how doctors and hospitals interpret the law. This has led some women to carry nonviable pregnancies to term, as The Texas Tribune documented in a story last month. Others, like Manzano and Mathisen, have traveled to abortion clinics out of state.

State District Court Judge Jessica Mangrum of Austin ruled in August that the attorney general cannot prosecute doctors who terminate a complicated pregnancy, including a fetal condition in which the fetus will not survive after birth.

The Texas Office of the Attorney General said this was tantamount to having a court rewrite the law.

“Under the guise of seeking clarity in the law, Plaintiffs ask the courts to broaden the statutory description of medical conditions that will allow a woman to obtain an abortion and to enshrine their preferred language in the Texas Constitution,” the state wrote in its appeal.

Manzano said she was disappointed when she learned the state had appealed the ruling, effectively putting it on hold until the Texas Supreme Court hears arguments on Nov. 28.

“When I’m sick, I don’t call the attorney general for my antibiotics,” she said. “I shouldn’t have to call the attorney general for my basic health care. Unless he wants to pay the bill, he shouldn’t get a say.”

The Center for Reproductive Rights has filed similar challenges in Tennessee, Idaho, and Oklahoma. Duane said they added the additional plaintiffs to show these cases are not as uncommon as people think.

“And then, for however many plaintiffs have decided to join the lawsuit and put their names and their lives out there, think about how many people didn’t join,” Duane said.

Jacob Lopez’s wife was pregnant when Roe v. Wade was overturned, and while they were upset by the ruling, he said it never occurred to them that it would impact their pregnancy.

“You don’t know until the world hits you in the face,” he said.

Lopez’s wife, who is identified only by her first initial in the lawsuit due to privacy concerns, had a normal pregnancy in the beginning. But then, at 19 weeks, they learned their daughter had anencephaly — she was developing without parts of her brain and skull.

“In our minds, we were already a family,” Lopez said. “We were buying clothes. We bought a baby crib. We had a vision of what her life was going to be. And then the doctor says this is not a viable pregnancy.”

The doctor gave them a pamphlet for an abortion clinic in New Mexico, but it was booked weeks out. Lopez called clinics in New Mexico, Colorado, and other surrounding states until they found one in San Diego.

“Ideally, we would have sought care at home in Texas, gone home and just cried at home,” he said. “Instead, we had to focus on plane tickets, lodging, rental cars.”

Lopez tried to keep his grief at bay long enough to get his wife out of the state and through the complicated, two-day procedure. But he broke down when they returned home and saw the baby crib waiting for them. He said the panic, fear, and logistics of last-minute travel compounded an already tragic circumstance.

“At that moment, I hated Texas,” he said. “It made me question, why did we come here?”

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