Supreme Court of Texas 

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No. 23-0629 

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State of Texas; Ken Paxton, in his official capacity as Attorney 

General of Texas; Texas Medical Board; and Stephen Brint 

Carlton, in his official capacity as Executive Director of the Texas 

Medical Board, 

Appellants, 

v. 

Amanda Zurawski; Lauren Miller; Lauren Hall; Anna Zargarian; 

Ashley Brandt; Kylie Beaton; Jessica Bernardo; Samantha 

Casiano; Austin Dennard, D.O.; Taylor Edwards; Kiersten 

Hogan; Lauren Van Vleet; Elizabeth Weller; Damla Karsan, 

M.D., on behalf of herself and her patients; and Judy Levison, 

M.D., M.P.H., on behalf of herself and her patients, 

Appellees

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On Direct Appeal from the 

353rd District Court, Travis County, Texas 

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JUSTICE LEHRMANN, concurring. 

In the wake of the United States Supreme Court’s decision to 

overturn Roe v. Wade, the Texas Legislature has enacted one of the most 

restrictive abortion bans in the country. And whatever my personal 

views may be about how restrictive abortion statutes in Texas “should” 
2 

be, it is the Legislature’s prerogative to make that determination. Cf. 

Tex. Health Presbyterian Hosp. of Denton v. D.A., 569 S.W.3d 126, 137 

(Tex. 2018) (noting that in construing statutes, courts should avoid 

“usurping the legislature’s role of deciding what the law should be”). 

However, notwithstanding the shifting legal landscape in this area, the 

Legislature’s authority is not without limits. Certainly, a woman’s right 

to a life-saving abortion is one such limit. But it is not the only limit—

at least not in Texas. I join the Court’s opinion today because it explains 

that a physician need not wait until her patient is on the verge of death 

to perform either a life-saving abortion or one that would prevent serious 

physical impairment. Indeed, we reiterate that imminence is not 

required. Ante at 3, 25; In re State, 682 S.W.3d 890, 894 (Tex. 2023). We 

also make clear that one other physician’s opinion that the performing 

doctor used “reasonable medical judgment” is sufficient corroboration to 

support the performing doctor’s action. See ante at 22. Hopefully, this 

will provide physicians with much-needed guidance about what the law 

requires. However, as Justice Busby explains in his concurrence, this 

does not mean that the statute is immune from further legal challenge. 

I write separately to explain why, in my view, the Court’s interpretation 

allows the Texas Human Life Protection Act to withstand today’s 

challenge and to note the limited nature of that challenge. 

As an initial matter, I recognize that the plaintiffs’ petition is 

replete with references to the Act’s lack of clarity and to confusion 

among practitioners regarding the scope of the exception at issue, 

leading to “significant chilling [in] the provision of medically necessary 

abortion.” Nevertheless, the plaintiffs affirmatively disclaim any 
3 

assertion that the statute is unconstitutionally “void for vagueness.” See 

Johnson v. United States, 576 U.S. 591, 595 (2015) (“Our cases establish 

that the Government violates [due process] by taking away someone’s 

life, liberty, or property under a criminal law so vague that it fails to 

give ordinary people fair notice of the conduct it punishes, or so 

standardless that it invites arbitrary enforcement.”); Kolender v. 

Lawson, 461 U.S. 352, 357 (1983) (describing the “void-for-vagueness 

doctrine”). That is, we are not asked to determine whether the Act’s lack 

of clarity, standing alone, caused it to violate the plaintiffs’, or anyone 

else’s, constitutional rights. Thus, the Court’s opinion rightly does not 

address, and in turn does not foreclose, such a challenge. See post at 5–6 

(Busby, J., concurring). 

Further, we are not asked whether an abortion lawfully could—

or should—have been provided to any of the patient-plaintiffs at any 

particular stage of their pregnancies, and none of the plaintiffs seek 

redress for past harms. Rather, the plaintiffs seek: (1) a declaration 

clarifying the scope of the Act’s exception “consistent with the Texas 

Constitution”; (2) a judgment that enforcing the Act contrary to that 

declaration would be ultra vires; (3) a judgment that enforcing the Act 

contrary to that declaration would violate the Texas Constitution as 

applied to pregnant people and physicians; and (4) temporary and 

permanent relief enjoining the defendants from enforcing the Act in a 

manner contrary to the judgment. Given the severe criminal, civil, and 

occupational penalties associated with a violation of the Act, and Texas 

physicians’ corresponding and justifiable concerns about complying with 

the Act while providing quality medical care, the plaintiffs’ request for 
4 

clarity is understandable. See TEX. HEALTH & SAFETY CODE

§ 170A.004(b) (“An offense under this section is a felony of the second 

degree, except that the offense is a felony of the first degree if an unborn 

child dies as a result of the offense.”); id. § 170A.005(b) (subjecting a 

person who violates the Act to “a civil penalty of not less than $100,000 

for each violation”); id. § 170A.007 (requiring the revocation of the 

license of a health care professional who violates the Act). 

As the case is presented to us, the Court’s opinion provides what 

clarity it can. The Act permits an abortion when, in the physician’s 

reasonable medical judgment, a woman has a life-threatening physical 

condition that places her at risk of death or serious physical impairment 

unless an abortion is performed. Id. § 170A.002(b). As the Court 

confirms, “the law does not require that a woman’s death be imminent 

or that she first suffer physical impairment. Rather, Texas law permits 

a physician to address the risk that a life-threatening condition poses 

before a woman suffers the consequences of that risk.” Ante at 3; see 

also id. at 25 (explaining that “the ‘life-threatening physical condition’ 

does not require a manifestation of that risk”). Nor does the law impose 

liability on a physician merely because not every doctor would have 

concluded that a life-saving abortion was warranted under the 

circumstances; rather, the State must “prove that no reasonable 

physician would have” reached that conclusion. Id. at 22. So construed, 

and only so construed, the Act survives the due-course challenge 

presented. However, an abortion ban any more restrictive or narrowly 

construed would, in my view, be inherently violative of both the United 

States Constitution and the Texas Constitution. 
5 

The Texas Constitution enumerates a citizen’s right to life in the 

Texas Bill of Rights. TEX. CONST. art. I, § 19 (“No citizen of this State 

shall be deprived of life, liberty, property, privileges or immunities, or in 

any manner disfranchised, except by the due course of the law of the 

land.”). This Court’s early, post-ratification opinions uniformly read 

Article I, Section 19 to provide protection for substantive, as well as 

procedural, rights. See Milliken v. Weatherford, 54 Tex. 388, 394 (1881) 

(invalidating a city ordinance that violated Due Course Clause 

substantive liberty protections or “common rights”). 

Texas’s Due Course Clause operates today as it did then. It serves 

as a constitutional safeguard against the State’s infringement of 

citizens’ fundamental rights—the most profound of which is a citizen’s 

enumerated right to life. Where a fundamental right or suspect class is 

at issue, as here, state action must “be narrowly tailored to serve a 

compelling government interest.” Richards v. League of United Latin 

Am. Citizens, 868 S.W.2d 306, 311 (Tex. 1993).1

As the Oklahoma and North Dakota Supreme Courts have 

already concluded based on analogous state constitutional provisions, a 

general abortion ban cannot survive constitutional scrutiny unless it 

excepts “the limited instances of life-saving and health-preserving 

1 The Act expressly, and as a matter of constitutional necessity, does 

not apply when a fetus has died in utero. TEX. HEALTH & SAFETY CODE

§ 245.002(1) (defining “abortion” to mean “the act of using or prescribing an 

instrument, a drug, a medicine, or any other substance, device, or means with 

the intent to cause the death of an unborn child of a woman known to be 

pregnant”); id. § 170A.001(3) (defining “pregnant” to mean “the female human 

reproductive condition of having a living unborn child within the female’s 

body” (emphasis added)). 
6 

circumstances.” Wrigley v. Romanick, 988 N.W.2d 231, 245 (N.D. 2023); 

see also Okla. Call for Reprod. Just. v. Drummond, 526 P.3d 1123, 1130 

(Okla. 2023). Moreover, requiring a patient “to be in actual and present 

danger” or “to wait until there is a medical emergency would further 

endanger the life of the pregnant woman and does not serve a compelling 

state interest.” Drummond, 526 P.3d at 1131. Texas’s Constitution 

similarly “creates an inherent right of a pregnant woman to terminate 

a pregnancy when necessary to preserve her life.” See id. at 1130. 

Separately, the Fifth and Fourteenth Amendments to the United 

States Constitution provide citizens similar protection against state 

deprivation of life, liberty, or property without due process of law. The 

Due Process Clause protects both substantive rights guaranteed by the 

first eight Amendments and unenumerated fundamental rights that 

have “deep roots in our history and tradition” and are essential to our 

Nation’s “scheme of ordered liberty.” Timbs v. Indiana, 139 S. Ct. 682, 

686–87 (2019) (citations omitted). A woman’s right to access life-saving 

medical care without undue interference by the government is deeply 

rooted in our history and tradition, essential to our Nation’s scheme of 

ordered liberty, and enshrined in the explicit language of the Fifth and 

Fourteenth Amendments. See U.S. CONST. amend. V (“No person shall 

be . . . deprived of life, liberty, or property, without due process of 

law . . . .”); id. amend. XIV (“[N]or shall any State deprive any person of 

life, liberty, or property without due process of law . . . .”). 

Indeed, it should go without saying that, although the U.S. 

Supreme Court has concluded that abortion is not a constitutional right, 

Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 292 (2022), a 
7 

pregnant patient retains a liberty interest in access to medical care, 

including abortion, to protect her life and health. Several Supreme 

Court Justices have already articulated this point. Id. at 339 n.2 

(Kavanaugh, J., concurring) (reiterating Justice Rehnquist’s assertion 

in his dissent in Roe v. Wade that “an exception to a State’s restriction 

on abortion would be constitutionally required when an abortion is 

necessary to save the life of the mother”); see also Roe v. Wade, 410 U.S. 

113, 173 (1973) (Rehnquist, J., dissenting) (“If the Texas statute were to 

prohibit an abortion even where the mother’s life is in jeopardy, I have 

little doubt that such a statute would lack a rational relation to a valid 

state objective . . . .”). 

Moreover, in jurisdictions where abortion was generally 

prohibited before Roe v. Wade, exceptions to preserve the mother’s life 

represented a co-equal and indivisible feature of that legal history and 

tradition.2 Texas’s 1856 enactment of Texas Penal Code articles 536 to 

541 serves as an example. Article 541, in particular, stated: “nothing 

contained in this chapter shall be deemed to apply to the case of an 

abortion procured or attempted to be procured by medical advice for the 

purpose of saving the life of the mother.” TEX. PENAL CODE art. 541 

2 As laid out in Appendices A and B to the Supreme Court’s opinion in 

Dobbs, almost every state and territory that banned or criminalized abortion 

before Roe included an explicit exception for the life of the mother. While a 

selective few of the early statutes did not contain an explicit exception, they 

required that the abortion be performed willfully and maliciously. See, e.g., 

CONN. STAT. TIT. 20, § 14 (1821). Hence, the scienter requirement provided a 

means to justify an abortion performed to protect the life of the mother. See 

Stephen G. Gilles, What Does Dobbs Mean for the Constitutional Right to a 

Life-or-Health-Preserving Abortion?, 92 MISS. L.J. 271, 293 (2023) (citing 

language in Dobbs). 
8 

(1857). Texas law continued to permit abortions for that purpose in the 

century that followed. See id. arts. 641–46 (1879); id. arts. 1071–76 

(1895); id. arts. 1191–96 (1911); TEX. REV. CIV. STAT. art. 4512.6 (1925). 

In accordance with that longstanding provision, in 1927 the Texas Court 

of Criminal Appeals held that a physician in Texas had “a right to 

produce an abortion . . . if his acts were directed towards saving the life 

of the mother of the child.” Ex parte Vick, 292 S.W. 889, 890 (Tex. Crim. 

App. 1927). 

This exception is not only a bedrock principle in Texas’s legal 

tradition, but it also reflects a broad and longstanding national 

consensus. See, e.g., Commonwealth v. Sholes, 95 Mass. (13 Allen) 554, 

558 (1866) (concluding that an abortion “done by a surgeon for the 

purpose of saving the life of the woman” is among the “circumstances 

which would furnish a lawful justification”); 2 F. Wharton, CRIMINAL 

LAW § 1230, p. 206 (7th ed. 1874) (“Of course it is a defense that the 

destruction of the child’s life was necessary to save that of the mother.”). 

Simply put, the very same legal history and tradition relied upon in 

Dobbs to support states’ authority to restrict abortion access 

simultaneously enshrines a woman’s constitutional right to a lifepreserving abortion. 

It is undoubtedly the prerogative of the political branches to 

determine what abortion restrictions Texans will tolerate, within 

constitutional parameters. And it is not the judiciary’s role to strike 

down laws that survive constitutional scrutiny, however narrowly. In 

this instance, the Legislature has enacted both a general rule and an 

exception to that rule which, in tandem, survive the constitutional 
9 

challenge the plaintiffs present. Critically, the exception ensures: (1) a 

pregnant patient can rely on her physician’s reasonable medical 

judgment that an abortion is medically necessary to prevent her death 

or serious physical impairment—before she is in imminent danger of 

such consequences; and (2) a physician can exercise her reasonable 

medical judgment without fear that she will be prosecuted if the State 

unearths a physician who would have reached a different conclusion 

under the circumstances. Absent such parameters, the statute would 

fall short. See Drummond, 526 P.3d at 1131. 

Although this area of law will inevitably require further 

development in the wake of Dobbs, it bears reiterating that the 

immediate duty to articulate more detailed standards and best practices 

consistent with “reasonable medical judgment” rests squarely on the 

medical community—not lawyers, judges, legislators, or anyone else 

lacking medical expertise. See In re State, 682 S.W.3d at 894–95. 

Physicians alone have the requisite education, training, and experience 

to articulate and exercise reasonable medical judgment in these life-anddeath situations. Therefore, pursuant to our decision in this case, 

immediate and ongoing efforts to formulate applicable standards and 

best practices are essential to ensure that women in Texas receive the 

timely, quality medical care that they deserve and to which they are 

entitled. The further the medical community goes in undertaking this 

sensitive task now, the better equipped courts will be to objectively 

evaluate a physician’s conduct in the future. 
10 

With these additional thoughts, I concur in the Court’s judgment 

and join its opinion. 

 

 Debra H. Lehrmann 

 Justice 

OPINION FILED: May 31, 2024