A Further Comment on the Texas AG's Threat to Hospitals, Doctors, and Anyone Else

As noted earlier today, on Thursday the Texas AG's office responded immediately to the TRO enjoining the state from suing or prosecuting the parents, their doctor, or the doctor's staff pursuant to the Texas's abortion laws. AG Paxton's response was a letter to three hospitals where the doctor has medical staff privileges. As summarized on the AG's website, the letter stated:

The Temporary Restraining Order (“TRO”) granted by the Travis County district judge purporting to allow an abortion to proceed will not insulate hospitals, doctors, or anyone else, from civil and criminal liability for violating Texas’ abortion laws. This includes first degree felony prosecutions, Tex. Health & Safety Code § 170A.004, and civil penalties of not less than $100,000 for each violation, Tex. Health & Safety Code §§ 170A.005, 171.207-211. And, while the TRO purports to temporarily enjoin actions brought by the OAG and TMB against Dr. Karsan and her staff, it does not enjoin actions brought by private citizens. Tex. Health & Safety Code § ¬¬171.207. Nor does it prohibit a district or county attorney from enforcing Texas’ pre-Roe abortion laws against Dr. Karsan or anyone else. The TRO will expire long before the statute of limitations for violating Texas’ abortion laws expires.

Prof. Steve Vladeck (UT-Austin) made this excellent point on "X": 

Those defending ambiguous medical exceptions in abortion bans regularly suggest that the problem is not the ambiguities, but doctors narrowly construing them.

And yet, here’s Texas AG Ken Paxton threatening doctors with civil and criminal liability for FOLLOWING A COURT ORDER.

Vladeck's post underscores the irony of the state's argument in November before the Texas Supreme Court  in defense of the medical exception in Texas's abortion ban that allows for an abortion in cases of "a life-threatening condition or risk of substantial bodily harm." The AG's office argued that the problem wasn't with ambiguous statutory language but instead with timid doctors who unreasonably refuse to follow the standard of care in such cases: "Beth Klusmann, a lawyer for the state, argued . . . that the women did not have the standing to sue, suggesting that the women should have instead sued their doctors for medical malpractice" (CBS, Nov. 28). Oral arguments in the Supreme Court are here.

The case is Zurawski v. State of Texas, and developments in the case can be followed on the website of the Center for Reproductive Rights, which represents the plaintiffs.