Texas judge’s ruling that woman can have abortion leaves hospitals liable to prosecution

Washington, D.C. Newsroom, Dec 7, 2023 / 17:50 pm

Texas Attorney General Ken Paxton warned three Houston-based hospitals that they are not immune from civil or criminal liability for violating the state’s abortion laws despite a court order that purports to allow a woman to receive an abortion.

Travis County District Judge Maya Guerra Gamble issued a temporary restraining order Thursday morning that prevents the state from taking legal action against an abortionist who intends to perform an abortion on a woman whose unborn child has a low likelihood of survival after birth. The order expires on Dec. 21, but a hearing to make the restraining order permanent is set for Dec. 20.

Although the temporary restraining order blocks the state from enforcing its abortion laws while it is in effect, Paxton warned that the state can enforce the law against the abortionist and the hospitals with which she is affiliated once it expires. 

In a letter, Paxton said the temporary restraining order “will expire long before the statute of limitations for violating Texas’ abortion laws expire,” which would allow the state to enforce its laws if a permanent restraining order does not hold up in court. 

“Your hospital may be liable for negligently credentialing the physician and failing to exercise appropriate professional judgment, among other potential regulatory and civil violations, if you permit [the doctor] to perform an unlawful abortion,” Paxton wrote. 

Paxton’s letter states that the court order will not shield the doctor, the hospital, or anyone else from civil or criminal liabilities, which could include first-degree felony prosecutions and fines of at least $100,000 for each violation. It adds that the order would also not prevent legal action brought by private citizens or the enforcement of Texas’ pre-Roe laws by a district or county attorney. 

The court order claims that the woman who is seeking an abortion qualifies for the medical exemption in Texas law, stating that her “life, health, and fertility are currently at serious risk” if she continues with the pregnancy. 

The order states that the doctor “reviewed [the woman’s] medical records and believes in good faith, exercising her best medical judgment, that [an] … abortion is medically recommended … and that the medical exception to Texas’ abortion bans and laws permit an abortion in [her] circumstances.”

However, Paxton said in his letter that the court’s reasoning is not based on “the legal standard” necessary to allow a medical exception for an abortion, which requires “reasonable medical judgment and a life-threatening physical condition.” He said the order fails to identify a specific life-threatening medical condition and does not explain “how the unidentified condition places [the woman] at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.”

“The temporary ruling fails to show that [the doctor] meets all of the elements necessary to fall within an exception to Texas’ abortion laws,” Paxton said. “[The judge] is not medically qualified to make this determination and it should not be relied upon. A [temporary restraining order] is no substitute for a medical judgment.”

Texas prohibits most abortions in almost all circumstances, except when the life of the mother is at risk or the physical health of the mother is seriously threatened. The woman who is seeking an abortion is about 20 weeks pregnant with her third child. The unborn child was diagnosed with trisomy 18. Only about 5%-10% of babies born with this condition will live past their first birthday.