Dr. Damla Karsan, a Houston-based obstetrics and gynecology specialist, says she experiences the everyday intimidation that comes as a result of Texas’s restrictive abortion ban when caring for patients whose health conditions are at risk due to complicated pregnancies.
Karsan found herself and one of these patients, Kate Cox, at the center of the state’s reproductive health battleground last year when Cox sued Texas to get an abortion after learning her pregnancy was non-viable.
Despite a lower court’s ruling that Karsan could perform the abortion, the Texas Supreme Court intervened, determining that Cox would not be able to receive one. Before the court’s decision, in a last-ditch effort to protect her health and future fertility, Cox’s legal team announced she was traveling out of state to obtain the procedure.
Local reproductive rights advocates and healthcare officials alike continue to urge politicians and statewide medical organizations for clarity surrounding the so-called medical exemptions linked to Texas law that prohibits abortions unless the pregnant person’s life or a major bodily function is at risk.
“Patients are getting sicker every day, every week that passes,” Karsan said. “So, we need to be able to respond in real time and do what the standard of care is. That’s all we are asking for. To provide the standard of care to our patients.”
“We need to be able to respond in real time and do what the standard of care is. That’s all we are asking for. To provide the standard of care to our patients.”
According to David Donatti, senior staff attorney at the American Civil Liberties Union of Texas, with the whittling down of the state bans, reproductive health-related litigation and advocacy is no longer focused on reinstating access to abortions. Instead, it concentrates on requesting clarification of laws and doctors’ ability to make medical decisions.
This is occurring in Texas and across the nation, as the U.S. Supreme Court heard oral arguments this week in a case involving Idaho’s abortion ban that challenges whether a federal law that requires emergency stabilizing care, including abortions, overrides the state mandate that only permits these procedures if without them a person would die.
The Emergency Medical Treatment and Labor Act, which is at the core of the lawsuit brought forth by the Biden Administration, requires all hospitals participating in Medicare to provide stabilizing care to patients having a medical emergency. If these facilities fail to comply, they risk losing the ability to participate in Medicare and state health programs and could have their provider agreements ended.
Joshua Turner, chief of constitutional litigation and policy for the Idaho Attorney General’s Office, argued that the state was within its jurisdiction to decide how to practice medicine. Justices Sonia Sotomayor and Elena Kagan pelted Turner with hypothetical cases of medical emergencies related to pregnancy, asking him what would happen in these situations.
Turner said each would be evaluated on a case-by-case basis. There was no objective standard, only a subjective one based on whether the physician made a good-faith decision. Sotomayor pointed out that this response was the problem.
U.S. Solicitor General Elizabeth Prelogar clarified to the conservative justices that the case was not about Idaho’s overall ban but about the state’s ability to criminalize essential care.
Justices Clarence Thomas and Brett Kavanaugh appeared to favor Idaho like most of their other more conservative peers, despite Kavanaugh’s questioning of Turner.
Justice Amy Coney Barrett, who is notably against abortion, occasionally veered to her left-leaning colleagues’ sides to question why the high-risk hypotheticals were not exempted under the state’s ban if they posed the possibility of death.
“The case in front of the Supreme Court is very narrow,” Donatti said. “It is really about a circumstance where an individual needing an abortion presents themselves to an emergency room and whether a facility can turn them away or require them to go elsewhere.”
“When we talk about this federal law, we’re talking about a small number of people,” he added. “But for those people, this is critically important. This is their livelihood, their ability to have families in the future.”
For many pregnant people, hospitals serve as a place for primary and maternity care. This is often the case in states like Texas, where roughly 50 percent of the state’s 254 counties were considered maternal health deserts and did not have OB-GYNs or birthing facilities according to 2023 data.
Donatti said what happens in the Idaho case could affect what occurs in a similar case in Texas that is currently pending in the courts. Unlike in Idaho, Texas Attorney General Ken Paxton initiated a lawsuit against the Biden Administration, arguing that the federal government could not require hospitals to offer emergency abortions.
According to the Texas Medical Board, its guidance aligns the state’s ban with federal law. However, legal experts indicate that this may be unlikely given the lack of clarity about what kinds of cases fall under Texas’s exemption and which don’t.
The board started initial evaluations and proposals of guidelines to define these exceptions, but those in the reproductive healthcare community argued further work was needed. The guidelines will either be modified or adopted in June.
Donatti noted that one key aspect of both Texas and Idaho laws is that they’re very severe and limited, arguably more so than what the federal law requires. Texas’s legal challenge continues to play out in court.
Most recently, the U.S. Fifth Circuit Court of Appeals sided with Texas. Donatti said if the ruling is challenged and the case makes it up to the country’s highest court, it would likely not be heard before October 2025. A decision on the Idaho case could come sometime this June.
“The problem is if you have a vaguely defined medical exemption that divests doctors of their ability to do their job, and then you throw heavy criminal sanctions on top of it, what you do is you ultimately deprive patients of essential health care,” he said.
“We have stacked the balance so that a physician gets this exception, but if they make the calculus wrong—and that decision will be made by individual prosecutors or by Paxton — then they lose your medical license, livelihood, profession, and entire liberty for up to 99 years,” he added.
According to Karsan, having the ability, experience, and skills to know what needs to be done for her patients but having her hands tied legally is difficult.
“Our training teaches us to mitigate risks. These are standards of care based on minimizing the risk to the patient and preserving their health and life,” Karsan said. “Not waiting until they’re on death’s door to intervene, and that’s really what the laws have done.”
She said several of her colleagues are afraid to speak to their patients out of fear they’ll be called out for aiding and abetting an abortion due to the language of Senate Bill 8. This law, which passed in 2021, nicknamed the “Heartbeat Act,” allows anyone to bring a lawsuit against an individual they believe assists in the process of terminating a pregnancy.
Karsan has practiced as an OB-GYN for nearly two decades. She said when she started her medical training, she didn’t anticipate that these legal obstacles would come later.
However, when state lawmakers started chipping away at access to abortion by requiring ultrasounds before these operations or for patients receiving them to be in a surgical facility — she said she knew that overturning Roe v. Wade was next.
It’s been almost two years since the Supreme Court struck down the constitutional right to an abortion, leaving the laws surrounding access to abortions to be determined state-by-state.
Karsan said the number of applicants to Texas medical schools, especially OB-GYN residencies in Texas, is down, and the number of applicants for positions — even academic positions – has decreased, too.
“Many of these individuals want to protect themselves, their families and their children from dealing with these issues,” Karsan noted. “So they choose to go to states with more access to care and quality reproductive choices.”
“Our Legislature and our judiciary are trying to practice medicine without a license,” she added.
This article appears in Jan 1 – Dec 31, 2024.
