The Texas Supreme Court heard oral arguments Tuesday in a case seeking clarity on the state's abortion ban which a group of women claim forced them to continue their medically risky pregnancies because doctors were unwilling to perform the procedure out of fear they were breaking the law.
The Texas lawsuit is one of the biggest challenges to abortion bans across the United States since Roe v. Wade was overturned in 2022.
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In July, several women gave testimony about being forced to carry babies they knew wouldn't survive or would die agonizing deaths moments after being born. Judge Jessica Mangrum, an elected Democrat, sided with the women, ruling the state ban was too restrictive, but her order was put on pause after the state appealed the case.
The all-Republican state Supreme Court expressed concern Tuesday about giving doctors too much leeway, viewing it as a slippery slope.
"This very well could open the door far more widely than you're acknowledging," Justice Jimmy Blacklock said.
Molly Duane, a lawyer with the Center for Reproductive Rights, which filed the lawsuit in March, told the justices that the exception in the state's near-total abortion ban for saving the mother's life was so vague and so unclear that it left doctors too "terrified" to intervene.
"While there is technically a medical exception to the bans, no one knows what it means, and the state won't tell us," she said.
Texas Assistant Attorney General Beth Klusman argued that the high court should overturn Mangrum's order, claiming the judge basically rewrote and expanded the exception to the state's ban.
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"We're just trying to identify when it's appropriate to end the life of an unborn child," she said. "The legislature has set the bar high, but there is nothing unconstitutional about their decision to do so."
In addition to the 20 women who are named as plaintiffs in the lawsuit, two Texas-based doctors have also added their names.
Current Texas law bans and criminalizes abortions except if the mother's life is in danger. They claim the vagueness in the wording makes the law murky and that doctors are unwilling to perform the procedure because they could be fined $100,000, stripped of their medical licenses, and spend up to 99 years in prison if caught.
Texas has one of the country's most rigid abortion bans and is the epicenter of the fight to restore rights to women seeking the procedure.
It is among 21 states that ban abortion altogether or restrict the procedure earlier in pregnancy than the standard set in Roe, which made abortion legal federally. Last year, the U.S. Supreme Court overturned the ruling, setting off a fight over abortion access across the country.
Thirteen states in the country ban abortion altogether.
In Texas, the fight over access has been polarizing.
"What's really important to understand is that there are two humans in the situation," Kaitlyn Kash, one of the plaintiffs in the lawsuit, told the Austin American-Statesman. "There's the mother, and there's the baby. And what's currently happening is that the mother is disposable, and my physical health, my mental health, all of these things don't matter. It is making sure that baby gets delivered even if they're going to die."
Kash was told by doctors that her unborn baby had severe skeletal dysplasia, a genetic disorder that affects the development of bones, joints, and cartilage. Usually, skeletal dysplasia is not diagnosed at 13 weeks, but her case was so severe that it was detected in an ultrasound. The likelihood of her baby surviving was extremely low.
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If the baby did make it to birth, it would suffocate soon thereafter. Hoping to avoid more pain for her unborn child, she sought an abortion. The problem was that no Texas doctor would perform one but suggested she go to nearby Kansas to get it done.
"My baby was going to die regardless," Kash said. "I just chose when."