The state of Texas is asking the Supreme Court to allow it to continue denying emergency medical care to pregnant women, pretty please. The request, which the justices will consider at conference on Monday, September 30, comes on the heels of a new report that shows the state’s maternal mortality rate has spiked dramatically since the state’s first ban on abortion went into effect in 2021.
Across the United States, maternal mortality rose 11 percent between 2019 to 2022; in Texas, over the same period, the maternal death rate surged 56 percent, according to an analysis of Centers for Disease Control and Prevention data conducted by the Gender Equity Policy Institute.
“There’s only one explanation for this staggering difference in maternal mortality,” Nancy L. Cohen, the institute’s president, told NBC News. “All the research points to Texas’ abortion ban as the primary driver of this alarming increase.”
Five weeks before an election that could hinge on outrage over abortion restrictions, officials in Texas are nevertheless charging ahead with their effort to ensure that the state can block doctors from providing emergency medical treatment to pregnant residents. The state sued the Department of Health and Human Services, arguing that the Biden administration violated the Medicare and Administrative Procedure Acts when it issued guidance clarifying that hospitals are required to provide emergency abortions if necessary to preserve a woman’s health — even in states that, like Texas, ban abortion.
Texas won with this argument in the Fifth Circuit earlier this year, allowing the state to continue prohibiting emergency abortions. The Biden administration is now appealing that decision, and Texas is asking the high court to let the Fifth Circuit decision stand.
If all of this sounds familiar, it is because a case that pivoted on a very similar question came before the Supreme Court last session; the court dismissed that case — Moyle v. United States — without ruling on the merits. The fundamental question at the heart of both cases is the same: Should doctors be allowed to treat pregnant women with health- and life-threatening conditions, or should those women be forced to grow sick, and in some cases, die because of a state law banning the specific treatment they need?
At least one Texas woman may have already died because of Texas’ ban. Yeniifer Alvarez-Estrada Glick, 27, died of complications from her pregnancy in 2022; four experts who examined her case told the New Yorker she likely would have lived if she had been offered, and accepted, an abortion. She was never given the choice.
Texas, for its part, denies that this case is about whether or not women in the state will be able to access abortion care. Instead, Attorney General Ken Paxton — assisted by the Alliance Defending Freedom, the conservative Christian law firm that helped engineer the destruction of Roe v. Wade — insists he and his co-counsel are simply trying to ascertain whether Joe Biden’s HHS violated the law by issuing its clarification without the “appropriate notice and comment” period and/or without proper “statutory authorization.”
Republican attorney generals like Paxton have increasingly begun outsourcing their culture war litigation to ADF, as Rolling Stone has previously reported. The group, which claims it helped draft the Mississippi abortion ban the Supreme Court used to knock down Roe, was tapped by Idaho Attorney General Raúl Labrador to defend that state’s abortion ban at the Supreme Court in the previous case involving emergency abortions before the court this year.
Some background on that case: After the Supreme Court struck down the federal right to abortion in 2022, Idaho imposed a near-total ban on pregnancy terminations in the state. The ban included one exception: Abortions could be provided to save a pregnant person’s life. But the language presented doctors and nurses with a difficult challenge — especially when it came to treating conditions like ectopic pregnancies and PPROM (preterm premature rupture of membrane), both of which can be fatal if left untreated — and they had to decide how sick a woman needed to be before they could legally intervene.
Last year, a lower court halted, in part, enforcement of the Idaho ban, allowing emergency abortions at hospitals if needed to protect the health of the mother. Shortly thereafter, the Supreme Court intervened to block that decision, preventing doctors from treating their patients, in some cases forcing them to fly those patients to a neighboring state for treatment. In June, a majority of justices admitted the court should not have gotten involved in the case prematurely, dismissing the case and allowing doctors to begin providing emergency abortions in Idaho again.
Now, Solicitor General Elizabeth Prelogar is asking the court to hear the Texas case, vacate the Fifth Circuit’s ruling, and remand the case to the lower courts to be re-considered in light of the court’s decision in Moyle. Ken Paxton and ADF meanwhile have insisted to the justices: “This is not Moyle 2.0.”
The justices will consider both arguments in conference next week, and, in the meantime, pregnant women in Texas will likely continue dying at higher rates than their counterparts in states with reasonable governance.
