On November 28, the Texas supreme court heard oral arguments in a case about the state’s abortion law.

In Zurawski v. Texas, a judge in Travis County ruled in August that the exception in Texas’s abortion law — which allows an abortion when there is a risk to the life of the mother or “a serious risk of substantial impairment of a major bodily function” — also covers cases when the baby is unlikely to survive long after birth. The State of Texas immediately appealed the ruling, and on Tuesday, Beth Klusmann of the Texas attorney general’s office argued to the state supreme court that the law’s exception does not cover 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). It would require an act of the legislature to revise the law to permit abortion when a fatal fetal health condition is the only reason for the abortion, Klusmann argued.

On the core matter of when the abortion law allows a doctor to intervene when a pregnancy poses a threat to the mother’s life or physical health, there was much agreement between Klusmann and Molly Duane of the Center for Reproductive Rights, the lawyer representing the women and doctors who brought the suit against the State of Texas.

Klusmann answered in the affirmative when a supreme court justice asked if a doctor could immediately offer treatment when a mother’s water breaks before viability. The lead plaintiff in the case, Amanda Zurawski, was seriously harmed in August 2022 when a hospital sent her home while she was suffering from that condition. In June of this year, the Texas governor signed a law (passed almost unanimously by the legislature) to explicitly note that such cases fall within the exception.

The Texas abortion statute triggered by the Dobbs decision says that a doctor using “reasonable medical judgment” may perform an abortion to save the mother’s life or avert impairment to a major bodily function. “When we’re looking at reasonable medical judgment, you can look to what other doctors have said, you can look to what medical societies have said, what a hospital policy is, in order to determine what is objectively reasonable in that circumstance,” Klusmann said. Under the standard of reasonable medical judgment, Klusmann added, “not everyone has to agree with you.”

So where exactly is the disagreement about cases in which the mother’s life is in danger? Duane, the opposing counsel, argued that doctors worry that their “reasonable medical judgment” could be questioned after the fact, and this standard must be interpreted as a “good faith” judgment. This is where things get complicated. Is there a substantive difference between “reasonable” medical judgment and “good faith” medical judgment, or is it just a matter of semantics? Klusmann argued that “good faith” medical judgment is a purely subjective standard that would open the door to doctors performing an abortion effectively for any reason. But Duane insisted: “This case is not about abortions that would be performed in an outpatient abortion facility. . . . This is about the very small minority, less than 1 percent of the abortions that used to be performed before abortion was banned in the state that were always occurring in the hospital setting.” 

In other words, both the lawyer for the Texas attorney general’s office and the lawyer for the Center for Reproductive Rights agree that the same cases threatening the mother’s life or physical health should be covered by the law as written. But they disagree about the precise language interpreting the law (as well as whether the law allows a fatal fetal health condition as the sole reason for abortion).

Even in a ruling upholding the “reasonable medical judgment” standard and declining to adopt the “good faith” language, it should be possible for the Texas supreme court to remove any shadow of a doubt that doctors are permitted to intervene in cases that pose a serious threat to the mother. “I think they can point out that . . . there’s no language in the statute that says the threat to the woman must be imminent, or an abortion is urgently needed, or there’s a need for immediacy,” constitutional attorney Paul Linton, who helped draft Texas’s post-Dobbs abortion ban, tells National Review. Linton thinks it is “very likely” the state supreme court will provide such clarity, and it’s possible they might also do more to clarify what “reasonable medical judgment” does and does not mean. 

Linton observes that while advocates of a right to abortion suggest that a Texas doctor must worry that one other doctor somewhere might question whether judgment was reasonable, the standard is roughly the opposite. In effect, Linton says, the “reasonable medical judgment” standard requires the state to prove beyond a reasonable doubt “that no reasonable physician would agree that an abortion was necessary for the reasons that this particular doctor performed an abortion. Now, that’s a hard standard to meet even though that’s an objective reasonable-doctor standard.” (Linton agrees with the State of Texas that a “good faith” standard would eventually be treated as a broad loophole.) 

Since the Dobbs decision, no doctor in Texas or anywhere else in America has been disciplined, sued, or prosecuted for performing an abortion to protect a mother’s life. (In fact, in over two years since Texas’s law allowing civil lawsuits against those performing elective abortions later than six weeks of pregnancy, the only doctor known to have been sued was one who wrote a Washington Post op-ed in which he deliberately attempted to create a legal challenge by suggesting that he performed an illegal elective abortion.) 

There is no good reason why confusion over the law became widespread or why it has taken so long to clear up such confusion. The standard of reasonable medical judgment is the standard in medical-malpractice cases, and it’s the standard in Texas’s 20-week abortion ban that was in effect since 2013. No one had any trouble understanding this standard for nearly a decade before Dobbs. 

But in response to Dobbs, some hospitals delayed treatment in cases such as the pre-viability rupture of membranes. While those hospitals providing substandard care appear to be guilty of malpractice, waiting for malpractice suits is not a good excuse for those in positions of authority to refuse to provide clarity. During oral arguments, Duane of the Center for Reproductive Rights repeatedly cited the words of Dr. Ingrid Skop of the pro-life Charlotte Lozier Institute, who served as the state’s sole medical expert. “The prolonged silence of the medical, legal, and bureaucratic organizations that could end the confusion is unconscionable,” Skop wrote in May of this year. “Government agencies and medical organizations that have historically cleared up confusion when laws were misunderstood have remained eerily silent.” Skop has been calling for such efforts to provide clarity since the moment Dobbs was decided; she repeated the call in March when the lawsuit was filed.

While these agencies still can and should provide clarity, there’s no reason why the Texas supreme court shouldn’t fulfill its role to clearly say what the law is.