Last week, in a widely watched case, the Texas Supreme Court rejected the claims of Amanda Zurawski and her fellow plaintiffs that they had suffered injuries after being denied emergency access to abortion due to lack of clarity in the state’s abortion ban. Zurawski v. State of Texas has offered an important model for lawyers seeking to chip away at sweeping state bans and even eventually undermine Dobbs v. Jackson Women’s Health Organization, the 2022 decision that overturned Roe v. Wade. Now the state Supreme Court’s decision offers a preview of conservatives’ response to the medical tragedies that have been all too common after Dobbs: to blame physicians and hint that the life of the fetus ultimately counts as much as or more than that of the pregnant patient.

From the beginning, Zurawski had significance for patients outside Texas. Republicans have been increasingly hostile to abortion exceptions since 2022, demanding that sexual assault victims report to law enforcement when such exemptions do exist, dropping rape and incest exemptions altogether in many other states, and going so far as to require physicians to prove their innocence rather than necessitating that prosecutors prove their guilt. Nevertheless, exceptions are critical to the post-Dobbs regime: They are popular with voters and offer the hope—in reality the illusion—that abortion bans do not operate as harshly as we may expect.

The Zurawski litigation illuminated how exceptions fail patients in the real world. Physicians, afraid of harsh sentences up to life in prison, turn away even those they feel confident will qualify under exceptions. The exemptions, by their own terms, do not apply to any number of serious medical complications or fetal conditions incompatible with life. The Zurawski plaintiffs argued that Texas’ law should cover these circumstances and that if the opposite was true, it was unconstitutional.

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