How a Republican and a Democrat Carved out Exemptions to Texas’s Abortion Ban
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Listener supported. WNYC Studios. This is the New Yorker Radio Hour, a co-production of WNYC Studios and The New Yorker. Welcome to the New Yorker Radio Hour. I'm David Remnick. Even before Roe v. Wade was overturned, Texas had one of the most restrictive abortion laws in the country. And after Roe fell, Texas went further with multiple laws that made nearly all abortions illegal.

Take a look at this crowd. Thousands are here at City Hall.

I had just been given the worst news of my life.

— Stefania Talladryd has been reporting for The New Yorker about the abortion fight in Texas. — A woman has to be—and I'm going to cite the law here— at risk of death or of substantial impairment of a major bodily function. — But that exception is not at all clear-cut. And doctors who are threatened with all kinds of penalties very often don't know what to do. Two lawsuits have been brought against the state of Texas by women for injury after they were denied abortions.

Stefania Taladrid cited the case of a woman with cancer who couldn't receive chemo or radiation treatment because of her pregnancy. Cases like those led to an unlikely collaboration between two Texas legislators, one an advocate of reproductive choice and another who helped write an abortion ban. Stef, you've been reporting in great depth on abortion and anti-abortion bills since before the Dobbs decision.

You talk with a state representative named Ann Johnson, who comes from Houston, and she was instrumental in this. So the first thing that you should know about Ann Johnson is that she's a Democratic member of the House in Texas. She was elected in 2020. And she represents the medical center in Texas. It's home to some of the largest and leading medical institutions in the state, not just the state, but the country, really. And

After Roe was overturned, the message that Johnson was getting from doctors was, I'm out of here. A violation of the law could result in a first-degree felony charge with the prospect of a very substantial prison sentence and a fine of at least $100,000 and the loss of a medical license. So you can imagine that doctors were...

pretty much weighing in their own livelihood against their patients at this point. Older doctors were considering early retirement. Some would leave the state too, right? Absolutely. Anecdotally, we have heard that a great number of physicians have left the state. And in particular, among younger physicians, you know, who were right at the moment where they were considering whether to even begin a practice in Texas, it was easy for them to say,

I'm just not going to do this, right? I'm not going to expose myself to this criminal and civil liability that comes with the law. Let's listen to a little of your conversation with Ann Johnson. There's just a differing perspective on what choice means, as I meant. I would talk to a pro-life person, I would give them a complicated moral scenario, and they'd go, that's not an abortion. Actually, it is. Right? Right.

The fact that they have the ability in their head to say, no, no, I see a distinction, right, when posed with the wrist. For conservative members in the House, abortion meant termination of a healthy pregnancy. And when Johnson would come up to them with conditions like a premature rupture of membrane, which is a fairly common complication of pregnancy that doctors talk to her a great deal about,

They would say, well, that's not an abortion, right? So there was a question of semantics there that needed to be addressed. What a lot of the doctors have been saying, and women have publicly said too, is that the language is so vague and the penalties for doctors are so steep that

And it's been widely documented that doctors and hospitals and administrators and lawyers within those hospitals have been either delaying or denying care to women in critical conditions. So you've been reporting on a law in Texas that was created because of this reality, because of situations like this. And this was a bipartisan effort. So what does this law do and what does it not do?

The law is what's called an affirmative defense. And to give you a little bit of background on this, before Johnson took office, she served as a chief prosecutor in the Harris County District Attorney's Office. And during her time in the DA's office, she was representing human trafficking victims who had faced prostitution convictions.

And in many of these cases, she promoted an affirmative defense, which allowed courts to essentially limit the culpability of these women who had been coerced into committing these offenses. So, again, our whole goal here was not to use the language that could blow up politically. And as a lawyer, and being in criminal law, for me, that's where this came from, which was...

What if we create a similar avenue for the doctors? Just in the same way we created for human trafficking victims. Yes, you engaged in prostitution, but you did it because, which is the defense. So we created the same thing for the physicians in this respect. And the goal was...

to take off the handcuffs that were being one personal which was criminal right they really felt that i could go to prison for a minimum of five years yeah the financial which is normally a first degree felony is a maximum ten thousand dollar fine but they changed the law to say a minimum of a hundred thousand dollars so they very purposely told the doctors i'm gonna get you both personally and financially

And it occurred to Johnson that if lawmakers created specific exemptions in the law, then doctors who got sued could show that the treatment that they had offered their patients was compliant with the language of the law. So in other words, they could say,

You know, I provided this care, but I did it because it was reasonable medical judgment. And a lot of lawmakers, conservative lawmakers, were deeply distrustful of doctors. They didn't trust them. They didn't trust their motives. And this dates back to the pandemic and all the issues around the vaccines and stuff. And so she got her team to reach out to women who had been directly affected by the bans and

What was she able to learn? She met, for instance, with a 32-year-old woman who had had a premature rupture. So her water essentially broke at 16 weeks. And the baby was, of course, weeks from viability, and she was at risk of developing an infection. When she got to the hospital, the doctors told her that there was nothing that they could do for her unless she developed a life-threatening condition. And

Within days, she went into labor, delivered a baby who died within minutes, and she developed a placental infection. Which is something that never would have happened with Roe in place. Never.

Steph, something really interesting about Johnson, who of course is a Democrat, ended up working with a state senator named Brian Hughes, who was one of the architects of SB8, the Texas law that nearly banned abortion before Roe was even overturned. How did that possibly work?

For those who don't know him, Brian Hughes has a reputation of being one of the most conservative senators in Texas. He has championed a series of controversial bills, including a permitless carry bill, a bill that restricts the teaching of critical race theory in schools. But he is best known really as the architect of SB8.

Early on, Hughes had written a letter to the Texas Medical Board expressing his concerns about the reports that he was seeing in the press and elsewhere about women being denied life-saving care. Let's listen to some of your conversation with Brian Hughes. The consensus was that the folks we talked to, the law is clear. Nevertheless, there are concerns

hospitals and doctors and lawyers for hospitals and doctors who are not interpreting the law the way it was drafted. And as a result of that, women are being harmed. So even though we believe the law is clear, we'd like to find a way to clarify it further. And so the dilemma is, how do you do that in a way that provides the clarity necessary but doesn't have any unintended consequences?

So he's talking about the unintended consequences of this legislation. What is he talking about there? I think if you were to ask him why he did this, he would tell you that he's genuinely concerned about women and that the intention of the law was never to harm them. One of the things that he mentioned was that at the time when he started talking to Johnson about this, he heard from pretty influential donors who were concerned about this. And one of them reached out to him and said, you know, my wife's really concerned about this.

And I heard that there might be a way that you could address this. And I really hope you do that. So I think it would be naive for us to think that he wasn't considering those concerns, that he wasn't looking at the polls. A growing number of Texans would like to see the laws around abortion be less strict. About half of Texans say that. And so I think all of those factors came into play here.

This is the New Yorker Radio Hour. More to come. Hello again, WNYC. It's Andrea Bernstein, a co-host of the podcast Trump, Inc. This August, I'm guest hosting The Law According to Trump, a special series on amicus from Slate.

Long before this year's historic Supreme Court term, Donald Trump created a blueprint for shielding himself from legal accountability on everything from taxes to fraud to discrimination. Listen now on Amicus as we explore Trump's history of bending the law to his will. Search Amicus wherever you're listening. Now, you have two lawmakers who are on diametrically opposed ideological sides.

And on a very divisive issue. And then they end up co-sponsoring a bill together. Describe what the bill is and what is their relationship now. So HB 3058 is essentially allowing doctors to intervene in cases of premature ruptures and ectopic pregnancies. So cases, for instance, like Amanda Zorowski's.

She suffered a premature rupture at 18 weeks, but doctors wouldn't offer her an abortion because they could still detect a heartbeat. She was sent home and ended up developing infections that permanently damaged one of her fallopian tubes. In March of last year, Zoroski became the first woman to file a suit against the state of Texas after being denied an abortion. And there are now 22 plaintiffs in her case.

And what Johnson is essentially saying is that a woman in her situation today would be able to access life-saving treatment. For Johnson, this is a very limited victory. And for the women of the state of Texas, this is a very limited victory. What does Anne Johnson think about the prospects for widening that victory, for expanding it?

I think Johnson is hopeful that more can be done come January of 2025, which is when the legislature will be meeting again. What's the next battle? An exception and further clarification of the law. What does that mean? Essentially allowing doctors to practice their medical judgment freely, as they did before the overturning of Roe v. Wade. And I think the reason why she's also hopeful is because

This was a pretty unconventional bipartisan coalition. In Texas legislative history, it doesn't happen very often. It really doesn't. Notoriously. And on Hugh's side, he is in close touch with the Texas Medical Board. And what he told us on the record was that he is watching the bill's implementation very, very closely. Mm-hmm.

And that he is hoping that it will resolve some of the ambiguities. Do you think that was just a kind of one-off situation in Texas? Or could there in fact be a softening of the climate now as abortion laws run into the reality of what's going on there and across the country? I think there's a recognition on both parts that more needs to be done.

The way that this was designed, Hughes essentially asked Johnson to put together a list of conditions that would be included into the law. And Johnson was able to put together a list of 13 conditions that dwindled down to two, ectopic pregnancies and premature ruptures. And what we know is that women on a daily basis are exposed to and suffer the

all sorts of pregnancy-related complications that are not limited to those two. Johnson was in a difficult position because she could either have walked away from that compromise or she could have accepted it as a first step. You know, she's playing the long game here. And she's looking at the other side and she's seeing that people who are anti-abortion, it took 50 years for them to overturn Roe v. Wade. And so I think

She definitely wants to do more, but she's operating under a very restrictive climate in Texas. And for Hughes, he has personally told me that he is watching the law's implementation and is hoping that it will resolve some of the ambiguities that it's hoping to address, but that he is willing to do more. Right. But this new law provides the clarifications that

are tiny in number, tiny. You talked with an OBGYN named Todd Ivey, who spoke about what it's been like to practice medicine under SB-8. And I have to say, he sounds pretty distraught with the situation. Until you, right, you know,

Sit in a room with a woman who has metastatic, recurrent metastatic breast cancer. Yes. You know, who's having her treatments delayed because she's pregnant. Okay. Or treatment plan altered because she's pregnant.

Until you're in a room speaking to a family whose wife or the matriarch in this family has a recurrent brain tumor in her brain stem and can't access services because she's early pregnant. Until you...

walk into a jam room and there's a mother who brings her 11 year old daughter, right? Who was molested by the grandfathers and is pregnant, right? Until you walk into an emergency room and you see, or even in your office, a college girl who's been raped and hasn't told anybody, you know, until you're in the, and may find herself pregnant until you are in those situations, right?

And until you are on the ground working with those things and handling those issues, whether I agree that decision or not is irrelevant. But I do not need a politician in my exam room looking over my shoulder telling me the right thing to do medically. It is incredibly powerful to hear that. Is there any...

political movement in the state of Texas on the larger issue about overturning abortion restrictions, because it was very interesting to me to listen to Joe Biden at the State of the Union address say overtly that one of the goals of a second term for him would be to somehow find a way to get the Senate and the House to

to uphold abortion laws in the future as a matter of legislation rather than as a Supreme Court decision? I think the reality is that there isn't at this time. You know, there are a series of suits, Amanda Zyrowski's being one of them, Kate Cox's being the second suit that was filed by a woman who faced a pregnancy-related complication. Her fetus was diagnosed with a severe fetal anomaly, trisomy 18. And

These are two women who have come forth and sued the state of Texas, right? And so what they're asking for is broader than what HB 3058 does, to let doctors practice medicine freely. And I think to me, the biggest question is, as you said, this is modest progress. Our reporting has shown that women have died after being denied life-saving care. So the question is, what needs to happen?

And how much longer will women have to wait in order for something to actually change? Steph, thank you very much. Thank you. You can read Stefania Taladreid on the fight to restore abortion rights in Texas at newyorker.com. I'm David Remnick, and that's our program for today. Thanks for listening. See you next time.

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