What It Takes to Claw Back Abortion Rights in Court

A lawyer behind challenges in ban states explains the narrow focus on clarifying medical exceptions.

Any day now, the Texas Supreme Court is expected to issue its ruling on Zurawski v. State of Texas, the first-of-its-kind legal challenge brought forward last year by 20 women who say that they were denied abortion care in the face of severe and dangerous pregnancy complications. The case seeks to clarify what circumstances qualify as medical emergencies under the state’s three overlapping abortion bans, which threaten providers with up to life in prison, in addition to a civil penalty of no less than $100,000. Molly Duane, a senior staff attorney at the Center for Reproductive Rights, came up with the case’s legal strategy and has since filed similar lawsuits in Idaho and Tennessee. Duane also represented Kate Cox, who separately sued Texas in an attempt to terminate her nonviable pregnancy. Cox was forced to leave the state to get an emergency abortion amid conflicting court orders. “Brittany Watts, Kate Cox — these are not isolated incidents,” she says. “The cruelty, the confusion, the absolute terror that is pervasive throughout the medical community and is impacting patients every single day, all that was by design.” I talked to Duane about the reasoning behind this focus on medical exceptions and the long game that is trying to claw back some abortion rights through the courts.

Anyone who works in this space knew that at some point, Roe was going to fall. Was there a moment where it clicked for you? 

There were several moments: The day Donald Trump was elected, because we knew what it could mean with a Supreme Court vacancy. The day that Anthony Kennedy retired, and then of course, when Ruth Bader Ginsburg died. We had been preparing for the immediate aftermath for a very long time because there were around 13 states that had trigger bans on the books. I was pregnant at the time that Dobbs was being heard. I was working on SB8 and what’d be our contingency plan for these trigger bans, so putting together a bunch of lawsuits to file immediately when the decision came out. By the time Dobbs came down, I was nursing a newborn. I have two kids. I’ve been through three very difficult pregnancies to get to them, and I was thinking about all the people who are going to be forced to be pregnant. I felt helpless and guilty that I wasn’t there to help my colleagues.

What was the seed for the legal strategy in Zurawski?

After SB8 went into effect in September 2021, there was that nine-month period where we didn’t need to guess at what the world post-Roe would look like because we were seeing it play out in front of our eyes. I got connected to a woman named Anna Zargarian, whose water had broken prematurely and who had been denied access to abortion even though it was quite clear that her health, her life, her fertility were at risk. She ended up getting on a plane and flying to Colorado to get an abortion because no one in Texas would help her. I remember thinking, People need to know about this, and they’re going to be outraged when they find out. On the day that Dobbs was decided, I started getting a ton of messages. One of them was from a colleague in Texas who said, “One of my best friends just came home from the doctor and her water broke. What should she do?” — basically the exact same situation that Anna was in. I was like, “She’s got to leave. I know what happened to Anna. She’s not going to get care in Texas.” I spent part of the day taking care of a newborn and part of the day calling a clinic, trying to get her an appointment, helping her just get out of the state. When I got back to work a couple months later, I couldn’t stop thinking about her and about Anna.

What did you do about it?

A number of stories like Anna’s started popping up in the news. We started tracking them — how big of a problem is this in Texas and elsewhere? It was pervasive, and doctors were terrified, understandably. I had a conversation with my colleague Marc Hearron — he led the SB8 case with me helping. We did a couple things. We talked to our global colleagues in Mexico, Kenya, Colombia, and Ireland — how did you go about decriminalization efforts in your countries? We then reached out to all the women who told their stories publicly — how did this happen? Who do you blame? Universally, it was the state. So many people said, “My doctor was doing their best. It was the state. I felt like the attorney general was in the room with me.” When we got off the phone with Amanda Zurawski, we looked at each other and we were like, “Zurawski v. Texas?” We had read all the articles, talked to as many people as we could, and every state was different. But it was so clear that, for a variety of reasons — including the reproductive population in Texas being so big, having huge swaths of rural areas, and a pervasive fear because of the political landscape — that this was the place.

Can you tell me about the case and what has happened since? 

It started with five women and two doctors. What we didn’t see coming was how many people would start reaching out to us once we filed, saying, “The exact same thing happened to me, and I want to be a plaintiff too,” or, “I have to do something with this grief.” It’s grown to 20 women, plus the two doctors, and I still get calls. Each time the case is in the news, more people see it and reach out. The next big thing is that we’re waiting for the Texas Supreme Court to issue a decision. I’m waiting for an email that could come at any moment of any day between now and June. It’s very frustrating and hard to explain to the plaintiffs. I’ve joked to some of them, like, “Oh, we tend to get rulings on Fridays because I don’t know, some cruel joke.” And now Amanda will text me on Fridays checking in, like, “Anything?”

We also have cases in Tennessee and Idaho, and we’re doing work in Oklahoma as well. It took us a little bit longer to fully diagnose the problem in other states, but what is clear across the board is that the exceptions were never intended to work. The people who push abortion bans have no intent on making them work better, because they don’t want people getting abortions. They don’t care if people die, even if that is the cost. Obviously we’re trying to win in court, because every single person that gets an abortion is a win. But we’re also trying to get people to understand that abortion is health care, that exceptions don’t work, and that if we want to change what’s happening in this country, we’ve got to repeal these laws.

How has been the process of working with these women? 

I just spend a lot of time hearing what people have gone through and saying, “How can I help?” Sometimes the answer is, “I just needed to talk to someone about it.” Because of all the stigma, people feel like they did something wrong or they can’t talk to anyone about it. In many conversations, they’ve said, “No one has ever just validated that what happened to me was wrong.” I’ve connected women to each other who have similar stories. Sometimes they think they want to speak out publicly, but they change their mind about it. We are trying to roll with them on that journey and help them find a way to channel their grief, their rage. To find some healing in this has been part of the process. We have a whole staff that now works individually with each plaintiff, because we know that being denied access to abortion is not the only problem that each person is going to face. We connect them to other legal support and access to mental-health services.

None of the women are anonymous. Was that a strategic choice?

When we were starting to file these cases, it was like, This has to be patient-led. They have to be the face of this. Amanda was the first who felt comfortable. We offer anonymity to everyone — if you want to do this, but you don’t feel safe using your name and your face, we can try to do that. We also explained on the other side why we think it’s powerful to use your face and your name. There is safety in numbers, of course. The more that people do it, the more comfortable it makes others to do the same.

How did you know that Zurawski’s argument could be replicated? 

We have tried to ground the legal claims very intentionally in a human-rights frame. Roe and the right to privacy was never enough. Thinking about abortion in a private way — as something you couldn’t talk about and that is unique from the rest of health care — helps stigmatize it. Grounding this in the right to health care — the right to have children, to not have children, to parent the children that you have — is more reproductive-justice-focused. To do that, you have to look at each state’s constitution, and every state constitution guarantees certain fundamental freedoms. The Tennessee case hits Tennessee residents in a way that is different from Texas. Idaho is in its own very unique crisis, with maternity wards closing and being such a predominantly rural state. We have tried to honor and tell the stories of what is unique to each state, while also explaining that this is a pervasive pattern of exceptions just not functioning in practice.

You mentioned earlier that whenever these cases are in the news, the Center receives a flood of calls from patients. One of those calls late last year was Kate Cox. Can you tell me more about her case?

Initially, I said to both my boss and to my husband, “Look, this woman just reached out to us. She really needs abortion care in Texas. She doesn’t want to have to leave for a variety of reasons. I just need a couple days. I can probably do it by myself. Not a big deal.” We didn’t expect it to be an international news story. Naïvely, I thought, “Maybe the state will agree, surely she qualifies for an abortion.” What the office of Texas attorney general Ken Paxton said when we were arguing Zurawski is that none of these women have standing because their harm is in the past — which is ludicrous. But they said to the Texas Supreme Court, “Now, if a woman was in the middle of a medical emergency, she could come to court.” That’s what we did. It was important because people went on the journey with Kate and with us, they saw the callous disregard the anti-abortion side has for the real suffering of families. Many people were just shocked to see how hollow those exceptions are.

One critique I’ve seen from advocates and people who work in abortion care is that these cases in Texas, Tennessee, and Idaho focus on medical exceptions rather than challenging the abortion bans as a whole. How do you respond to that? 

We know this is a very small subset of people who seek abortions. The abortion that my grandmother had, the abortion that my mother had, were not Amanda Zurawski’s abortion. I wouldn’t be here today without those abortions. Abortion is medically necessary, full stop. But there is no silver bullet. Overturning Roe took 50 years for the anti-abortion movement to achieve, and it’s not their total goal. Change is not going to happen overnight, not in a country as decentralized and big as ours. I understand the critique, but it’s going to take a lifetime of work to get back to where we started — which wasn’t that great to begin with.

I think people who are in the movement also need to be very creative in their approach. We litigate to achieve short-term wins but also serve long-term goals, be they jurisprudential or public-narrative facing. And also, we did challenge SB8. We challenged the trigger bans in many states. And we failed. These women would not be able to testify in court if we filed a case that would just be thrown out. We have to be realistic about the courts that we’re dealing with. Coming from a public-health frame, our goal is to help large populations, millions at a time. That’s not always possible. In the meantime, every single person we help is a win. If that’s how we have to calculate success for a while, that’s okay.

This interview has been edited and condensed for length and clarity.