Supreme Court of Texas
                          ══════════
                           No. 23-0629
                          ══════════

 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

  ═══════════════════════════════════════
              On Direct Appeal from the
       353rd District Court, Travis County, Texas
  ═══════════════════════════════════════

                    Argued November 28, 2023

      JUSTICE BLAND delivered the opinion of the Court.

      JUSTICE LEHRMANN filed a concurring opinion.

     JUSTICE BUSBY filed a concurring opinion, in which Justice
Lehrmann joined.
      Texas law permits a life-saving abortion. A physician cannot be
fined or disciplined for performing an abortion when the physician,
exercising reasonable medical judgment, concludes (1) a pregnant
woman has a life-threatening physical condition, and (2) that condition
poses a risk of death or serious physical impairment unless an abortion
is performed. After the United States Supreme Court overturned Roe v.
Wade, current Texas law otherwise generally prohibits performing an
abortion.
      This case comes to us as a direct appeal from a temporary
injunction stopping enforcement of Texas’s abortion laws in various
circumstances. The plaintiffs include women who suffered serious
complications during their pregnancies—situations filled with immense
personal heartbreak. The State does not contest that at least some of
these complications present life-threatening conditions for which an
abortion may be indicated. In amendments to Texas law during the last
regular legislative session, the Legislature expressly permitted abortion
for one of the pregnancy complications presented in this case. The law
can be—and has been—amended to reflect policy choices on abortion.
Keeping that in mind, we turn to answer the legal questions this appeal
presents.
      We hold that Dr. Damla Karsan, a physician–plaintiff in this suit,
has standing to challenge the Attorney General’s enforcement of the
Human Life Protection Act against her. We further conclude that the
Declaratory Judgments Act waives the State’s immunity for a claim that
a statute violates the state constitution. Although a party may not sue




                                   2
to seek construction of a statute in the abstract, a court may interpret a
statute when it is a necessary part of resolving constitutional claims.
      Under the Human Life Protection Act, a woman with a
life-threatening physical condition and her physician have the legal
authority to proceed with an abortion to save the woman’s life or major
bodily function, in the exercise of reasonable medical judgment and with
the woman’s informed consent. 1 As our Court recently held, the law does
not require that a woman’s death be imminent or that she first suffer
physical impairment. 2 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. A physician who tells a patient, “Your life
is threatened by a complication that has arisen during your pregnancy,
and you may die, or there is a serious risk you will suffer substantial
physical impairment unless an abortion is performed,” and in the same
breath states “but the law won’t allow me to provide an abortion in these
circumstances” is simply wrong in that legal assessment.
      Given this construction, we conclude that Dr. Karsan has not
demonstrated that the part of the Human Life Protection Act that
permits life-saving abortion is narrower than the Texas Constitution
allows. Because the trial court’s injunction departed from the law
without constitutional justification, we vacate its order.




      1 Tex. Health & Safety Code § 170A.002.


      2 In re State, 

, 894 (Tex. 2023).




                                      3
                                        I
                     Facts and Procedural History
                                        A
                         Claims and Contentions
       The Center for Reproductive Rights, on behalf of several Texas
plaintiffs, sued the State through the Attorney General and the Texas
Medical Board, challenging aspects of Texas’s abortion laws. The Center
seeks (1) an interpretation of the Texas law that permits life-saving
abortions and (2) to rewrite that law to change the circumstances in
which Texas law must permit an abortion. Absent judicial adoption of
the Center’s preferred state abortion policy, it contends, the state’s laws
are unconstitutional.
       Among the plaintiffs are several Texas women and two physicians
who treat pregnant women. 3 The Center alleges that the complications
the women faced during their pregnancies placed them within existing
Texas law that permits life-saving abortion. However, it alleges, the
Texas doctors who treated the women were hesitant to perform
abortions that comply with the law for fear of legal consequences. As a
result, the Center further alleges, the women either did not receive the


       3 We confine our review to the evidence presented at the temporary

injunction hearing. A party seeking injunctive relief has the burden of pleading
and proving a probable right to relief. Butnaru v. Ford Motor Co., 

 (Tex. 2002). A trial court abuses its discretion if it enters a temporary
injunction unsupported by the evidence. Operation Rescue-Nat’l v. Planned
Parenthood of Hous. & Se. Tex., Inc., 

 (Tex. 1998). The trial
court properly excluded affidavit evidence. Millwrights Loc. Union No. 2484 v.
Rust Eng’g Co., 

 (Tex. 1968) (noting “the proof required to
support a judgment issuing a writ of temporary injunction may not be made by
affidavit” in the absence of agreement).




                                        4
abortions that Texas law permits or were delayed in receiving abortions
in Texas or out of state.
      The Center sought relief against the State, the Attorney General,
and the Texas Medical Board, seeking an injunction to stop enforcement
of three sets of Texas abortion laws:
      •   The Human Life Protection Act, found in Chapter 170A of the
          Health and Safety Code, which imposes civil and criminal
          liability against abortion providers who violate it;
      •   Former Texas Penal Code articles 1191–1196, 4 last amended
          in 1925, and now codified at Chapter 6 1/2 of the revised civil
          statutes, making it a criminal offense to provide an abortion;
          and
      •   The Heartbeat Act, found in Health and Safety Code Sections
          171.203–205, a private-enforcement statute.
Each of these laws permits abortions performed to save the life of the
mother, though using different language. The Center acknowledges as
much, but it argues that the laws are unclear. As a result, it contends,
there are physicians in Texas who have refused to provide abortions that
Texas law currently permits.
      The State sought to dismiss the case through a plea to the
jurisdiction, urging that:
      •   No state official has enforced any Texas abortion law against
          any of these plaintiffs.
      •   The state officials named in this case—the Attorney General
          and the Director of the Texas Medical Board—have no
          authority to enforce Texas criminal laws.
      •   The trial court had no jurisdiction to interpret the law under
          the Declaratory Judgments Act.


      4 Tex. Rev. Civ. Stat. arts. 4512.1–.6.




                                       5
      •   Current Texas law permitting life-saving abortion is not more
          limiting than the Texas Constitution permits.
The State also invoked sovereign immunity, arguing that the
Declaratory Judgments Act does not waive the State’s immunity when
a party sues to seek an interpretation of the law in connection with
hypothetical facts.
                                   B
                       The Trial Court Hearing
      The trial court heard testimony from four patients, one physician,
and three experts.
      Amanda Zurawski testified that she was seventeen weeks
pregnant with her first child when her doctor diagnosed her with a
premature dilation of the cervix and informed her that a miscarriage
was inevitable. A second opinion from a maternal–fetal medicine doctor
confirmed that diagnosis. Ms. Zurawski had suffered a preterm
pre-labor rupture of membranes (sometimes referred to as PPROM).
Tragically, she learned that she “was going to lose the baby with
complete certainty.”
      Ms. Zurawski testified that her doctors refused to perform an
abortion immediately because the baby’s heart was still beating. They
sent her home but advised her to remain near the hospital due to the
risk of infection. Three days later, Ms. Zurawski developed septic shock.
At that point, doctors induced delivery of her stillborn daughter, whom
she named Willow. Ms. Zurawski remained in intensive care for three
days. Scarring from the infection was so severe that she required
surgical reconstruction of her uterus and lost the use of one of her
fallopian tubes.




                                   6
      Ashley Brandt testified that she was twelve weeks pregnant with
twins when her doctor diagnosed one of the babies with a “100 percent
fatal” condition called acrania, a type of neural-tube defect. The baby’s
skull had failed to fuse. As the condition progressed, eventually the
baby’s heart would stop, likely triggering labor. If this happened too
early in the pregnancy, Ms. Brandt’s other, healthy twin would also die.
Ms. Brandt desired a procedure in which the twin with the fatal fetal
condition is aborted in the hope that the other unborn child would
survive. Ms. Brandt also was told that, if her child’s condition progressed
to anencephaly, Ms. Brandt would likely develop polyhydramnios, an
excess of amniotic fluid that placed her at risk of preterm pre-labor
rupture of membranes and placental abruption. Ms. Brandt traveled out
of state for an abortion and carried her other child to term.
      Samantha Casiano testified that she was twenty weeks pregnant
when a routine ultrasound revealed that her daughter had anencephaly.
Because her physician would not perform an abortion, Ms. Casiano
carried her daughter, whom she named Halo, for another three months
until she was born prematurely. Halo died in Ms. Casiano’s arms four
hours after she was born.
      Dr. Austin Dennard, an obstetrician–gynecologist practicing in
Dallas, testified that her eleven-week ultrasound revealed “something
catastrophically wrong.” Dr. Dennard’s baby was diagnosed with
anencephaly. From her training and experience, Dr. Dennard knew
“[t]here’s no chance of survival and that each day that I remained
pregnant, my physical life was more and more at risk.” Dr. Dennard
elected to travel out of state to receive an abortion.




                                     7
      Dr.     Damla      Karsan,     a    physician–plaintiff,     is    an
obstetrician–gynecologist managing her own practice with privileges at
hospitals in Houston. For some pregnancy complications, Dr. Karsan
testified that the standard of care is to offer the patient the option of an
abortion. Preterm pre-labor rupture of membranes is one such condition
because it inevitably results in an infection. In her view, severe fetal
abnormalities are another because the risks associated with pregnancy
such as hemorrhage, infection, and preeclampsia outweigh the chance
of the pregnancy resulting in a healthy child. Dr. Karsan testified that
Texas’s abortion laws “amplified the fear and reluctance to offer a
patient an abortion, even if I thought it might pass the exceptions within
the law.”
      Dr. Karsan described a patient who was fifteen weeks pregnant
and experiencing significant bleeding, whose unborn child was
diagnosed with anencephaly. “[N]ot only was she carrying a fetus that
had no chance of survival, she had a heightened risk for hemorrhage
because she had a subchorionic bleed and had already . . . bled a
significant amount.” Dr. Karsan believed the patient should be offered
an abortion. However, the hospital required the agreement of two
physicians before proceeding. The maternal–fetal medicine specialist
who consulted on the case did not concur with Dr. Karsan’s assessment
that an abortion was indicated at that time.
      The Center presented two experts, one in maternal–fetal
medicine and the other in emergency medicine. The maternal–fetal
medicine expert testified that physicians should be allowed to determine
whether an abortion is medically necessary in any given circumstance.




                                     8
The expert also opined that there are some medical indications for an
abortion that may not be covered by the current Texas laws that permit
life-saving abortions. The emergency-medicine expert testified that
confusion about the law is leading physicians to err on the side of not
treating their patients. In that expert’s view, Texas law should permit
physicians to act in good faith.
      The    State    defendants    also    presented   an     expert,   an
obstetrician–gynecologist practicing in San Antonio. The State’s expert
testified that she, too, has cared for patients with severe complications
that required intervention by abortion to save a woman’s life. She
testified that “[m]ost doctors know how to intervene and when to
intervene for life-threatening emergencies.” In her view, the confusion
around the laws permitting life-saving abortion is attributable to the
failure to provide guidance, not the law:
      I think it is clear that the Texas law allows treatment of
      life-threatening conditions. I have seen that there is
      confusion and many physicians who don’t understand what
      the law says, and I think that has resulted in suboptimal
      care. It is not the law’s fault. The law is quite clear.
Noting that current Texas law imposes no temporal limits for a
life-saving abortion, the State’s expert urged doctors to not “wait until a
woman is in danger of losing her life before you intervene.”
                                    C
                          Procedural History
      After the hearing, the trial court ordered a temporary injunction.
The injunction stopped the State defendants from:
      enforcing Texas’s abortion bans against physicians who
      provide abortion care and those that aid or abet in the




                                    9
       provision of abortion care for any pregnant person who, in
       the treating physician’s good faith judgment . . . has: (1) a
       complication of pregnancy that poses a risk of infection or
       otherwise makes continuing a pregnancy unsafe for the
       pregnant person; (2) a condition exacerbated by pregnancy,
       that cannot be effectively treated during pregnancy, or that
       requires recurrent invasive intervention; and/or (3) a fetal
       condition where the fetus is unlikely to survive the
       pregnancy and sustain life after birth.
According to the trial court’s order, official enforcement of the abortion
laws otherwise “would be inconsistent with Article 1, §§ 3, 3a, and/or 19
of the Texas Constitution.” The court also declared the Heartbeat Act
unconstitutional under Article 1, Section 13 of the Texas Constitution,
though the Center did not raise such a challenge. The trial court denied
the State’s plea to the jurisdiction.
       The State defendants directly appealed to this Court. 5
                                        II
                                 Standing
       We begin with jurisdiction. The State challenges the plaintiffs’
standing and asserts sovereign immunity. Both doctrines implicate a
court’s power to decide this case. For every court case, “subject-matter
jurisdiction must exist before we can consider the merits,” and a court
must examine its jurisdiction “any time it is in doubt.” 6



       5 See Tex. Gov’t Code § 22.001(c) (“An appeal may be taken directly to

the supreme court from an order of a trial court granting or denying an
interlocutory or permanent injunction on the ground of the constitutionality of
a statute of this state.”).
       6 Tex. Propane Gas Ass’n v. City of Houston, 

, 797 (Tex.

2021) (quoting Pike v. Tex. EMC Mgmt., LLC, 

, 774 (Tex. 2020)).




                                        10
       A plaintiff must have standing to sue. 7 Part of that analysis
depends on whether a plaintiff has alleged an injury that her lawsuit
can vindicate. A plaintiff’s general disagreement about the governing
law or what the law should be does not suffice. Otherwise, anyone could
approach a court for an opinion about hypothetical applications of the
law. Instead, the relief that a plaintiff seeks from a court must in some
way rectify or compensate the plaintiff for her alleged injury. In other
words, to have standing, a plaintiff must allege a concrete personal
injury that is both traceable to the defendant’s conduct and likely
redressable by the requested relief. 8
       In this case, the State challenges three aspects of standing. First,
the State argues that a plaintiff must specifically allege that the State
has sought to enforce the law against her; otherwise, no concrete dispute
exists for a court to resolve. 9 Second, the State observes that the
defendants named in this case do not enforce criminal laws. An order
stopping enforcement of laws that the defendants have no authority to
enforce does not redress a concrete injury. The State concedes, however,
that the Attorney General and the Texas Medical Board possess some


       7 DaimlerChrysler Corp. v. Inman, 

 (Tex. 2008) (“A

court has no jurisdiction over a claim made by a plaintiff without standing to
assert it.”).
       8 Heckman v. Williamson County, 

, 154–55 (Tex. 2012)

(incorporating Article III standing analysis in the Texas framework).
       9 In re Abbott, 

, 812 (Tex. 2020) (“To establish standing

based on a perceived threat of injury that has not yet come to pass, the
‘threatened injury must be certainly impending to constitute injury in fact’;
mere ‘allegations of possible future injury’ are not sufficient.” (quoting
Whitmore v. Arkansas, 

 (1990))).




                                     11
civil-enforcement powers. Third, the State argues that the plaintiffs
cannot remedy their alleged injuries through this lawsuit. The plaintiffs
do not trace their injury to a state official. Their doctors refused to
perform abortions, but the Center does not allege that a state official
intervened or told any of the plaintiffs’ doctors not to perform an
abortion in the circumstances presented.
                                      A
                   Specific Threat of Enforcement
      We first examine whether the Center has adequately alleged a
specific threat of enforcement against any of the plaintiffs. To directly
challenge the constitutionality of a statute, a plaintiff must allege that
the plaintiff (1) intends to engage in conduct that is arguably
constitutionally protected but not permitted by the statute and (2) faces
a credible threat of prosecution under that law. 10
      At the outset, the Center argued that a general enforcement
statement by the Attorney General was enough to establish standing to
sue. A week after the Court heard oral argument in this case, however,
the Center filed a suit against the State defendants on behalf of
Dr. Karsan—a plaintiff in this case—and a Texas mother and her
husband.
      After a trial court ordered an injunction in favor of Dr. Karsan,
the Attorney General sent letters to three Houston hospitals


      10 

 (holding that the plaintiff must “allege ‘an intention to engage in

a course of conduct arguably affected with a constitutional interest, but
proscribed by a statute, and there exists a credible threat of prosecution
thereunder’” (quoting Babbitt v. United Farm Workers Nat’l Union, 

 (1979))).




                                     12
threatening liability if the hospitals permitted Dr. Karsan to perform an
abortion under the auspices of the order. The letter warns that the order
“will not insulate you, or anyone else, from civil and criminal liability
for violating Texas’ abortion laws, including 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.” The Center filed the Attorney General’s
letter in this case, and it is part of the record in this Court.
       We conclude that the Attorney General directly threatened
enforcement against Dr. Karsan in response to her stated intent to
engage in what she contends is constitutionally protected activity. A
state official’s letter threatening enforcement of a specific law against a
plaintiff seeking relief from such enforcement is a sufficient showing of
a threat of enforcement to establish standing to sue. 11 Although
ordinarily courts must determine standing based on facts pleaded at the
outset of the suit, 12 in this case, the Center pleaded the threat of
enforcement and adduced facts demonstrating that a specific threat of
enforcement had taken place. 13 Dr. Karsan has not shown that the




       11 See Abbott v. Harris County, 

, 9 (Tex. 2023) (concluding

that letters to plaintiffs threatening enforcement and enforcement actions
against others sufficiently established threat of enforcement).
       12 Tex. Ass’n of Bus. v. Tex. Air Control Bd., 

, 446 n.9

(Tex. 1993).
       13 See Perry v. Del Rio, 

, 251–52 (Tex. 2001) (“[A] claim’s

lack of ripeness when filed is not a jurisdictional infirmity requiring dismissal
if the case has matured.”).




                                       13
Texas Medical Board has threatened enforcement. She thus has not
established standing as to it.
       When multiple plaintiffs seek relief against enforcement of a law,
the existence of one plaintiff with standing is sufficient to support
litigation of the claim as to that plaintiff. 14 Dr. Karsan has met the
threshold requirement of a threat of enforcement against her. We
address Dr. Karsan’s claims in association with her case against the
Attorney General.
                                     B
                           Enforcement Authority
       The second part of a credible threat of enforcement is a State
defendant’s authority to enforce the challenged law. An injunction is an
empty vessel if the enjoined official never had the power to enforce the
law in the first place.
       We addressed this essential requirement in In re Abbott. 15 There,
our Court held that no credible threat of criminal prosecution could exist
because neither the Governor nor the Attorney General had any
authority to initiate criminal prosecutions. 16 The plaintiffs thus lacked
standing to enjoin those officials from initiating criminal prosecutions. 17
Similarly, in this case, of the three laws generally prohibiting abortion,



       14 Heckman, 

 n.64. Other than the letters threatening

enforcement against Dr. Karsan, the Center made no showing of state
enforcement against any plaintiff.
       15 601 S.W.3d at 812.


       16 Id.


       17 Id. at 812–13.




                                     14
the Attorney General is authorized to enforce only one: the Attorney
General may recover civil penalties for violations of the Human Life
Protection Act. 18 Local district or county attorneys may prosecute
criminal violations of the Penal Code or the Human Life Protection Act,
not the Attorney General. 19 Further, the Attorney General has no
authority to enforce the Heartbeat Act. 20
         The Center responds that it may seek a global injunction by
naming the State generally. This proposition finds no support in Texas
law. Rather, in Texas, a suit brought against the State must be
dismissed unless the state official named in the suit has enforcement
authority. 21 In Abbott v. Mexican American Legislative Caucus, for
example, a group sued the State without naming a state official. 22
Relying on longstanding precedent, we held that the group lacked
standing because “the State itself has no enforcement authority” over
the challenged laws. 23 Suits against the State do not sweep in every
officer operating under the State’s authority; rather, a plaintiff must


         18 Tex.
               Health & Safety Code § 170A.005. The Texas Medical Board
“shall revoke the license” of a physician who violates the Act. Id. § 170A.007.
Though the State does not dispute that the Board has some civil enforcement
power, a disciplinary proceeding does not result in the imposition of criminal
liability.
         19 State v. Stephens, 

, 47, 52 (Tex. Crim. App. 2021).


         20 Whole Woman’s Health v. Jackson, 

, 575 (Tex. 2022);

see also Tex. Health & Safety Code § 171.207(a).
         21 Abbott v. Mexican Am. Legis. Caucus, 

, 696–98 (Tex.

2022).
         22 

         23 Id. at 698.




                                        15
identify and name the officer or agency with authority to enforce the
challenged law. 24 Accordingly, we confine our review to the Attorney
General’s threat of enforcement of the Human Life Protection Act.
                                       C
                              Redressability
       Third, we examine whether the relief Dr. Karsan seeks can
redress the injuries she alleges. “Redressability” means that “there is a
substantial likelihood that the requested relief will remedy the alleged
injury.” 25 Dr. Karsan’s claims regarding the Human Life Protection
Act’s civil enforcement are redressable by a favorable injunction. An
injunction restraining the Attorney General—a state official with
authority to act—redresses Dr. Karsan’s alleged injury of civil
prosecution under a law she challenges as unconstitutional. 26
       Dr. Karsan’s injury is different from a woman’s assertion of a
constitutional right to obtain an abortion. 27 Under the Human Life

       24 Dr. Karsan claims that the Texas Medical Board enforces criminal

laws through disciplinary proceedings; however, as we have held, the Texas
Medical Board has not threatened Dr. Karsan with enforcement or removal of
her license based on a violation of the criminal—or any—law. Thus, she has
not established standing to sue the Board.
       25 Meyers v. JDC/Firethorne, Ltd., 

 (Tex. 2018)
(citing Heckman, 369 S.W.3d at 155–56).
       26 To seek relief against the State, a claimed injury must be traceable

to the State, not “the result of the independent action of some third party not
before the court.” Heckman, 

 (quoting Lujan v. Defs. of
Wildlife, 

 (1992)). Unlike Dr. Karsan, the patients’ claims for
relief therefore cannot be redressed by an injunction against the Attorney
General.
       27 Because we conclude Dr. Karsan has standing in her own right, we

need not decide whether a physician may challenge laws that allegedly infringe




                                      16
Protection Act, a woman who obtains an abortion cannot be
prosecuted. 28 The law instead aims at those who unlawfully provide an
abortion. Dr. Karsan has standing to bring her own claim, in which she
asserts she has a constitutional right to a lawful occupation the Act
impedes. We address Dr. Karsan’s constitutional challenges in that
context.
       To summarize, we conclude that Dr. Karsan has standing to bring
her claims against the Attorney General, insofar as she challenges civil
enforcement of the Human Life Protection Act.
                                       III
                            Sovereign Immunity
       The State’s second challenge to the trial court’s jurisdiction is that
sovereign immunity bars the Center’s claims. Under the doctrine of
sovereign immunity, the State and its officers are shielded from judicial
scrutiny unless the State consents to suit. 29 The Center responds that
the Declaratory Judgments Act waives immunity.
       The Declaratory Judgments Act “does not contain a general
waiver of sovereign immunity” for claims for declaratory judgment




upon the constitutional rights of her patients. Ordinarily “a litigant must
assert his or her own legal rights and interests, and cannot rest a claim to relief
on the legal rights or interests of third parties.” Powers v. Ohio, 

 (1991); see also Tex. Workers’ Comp. Comm’n v. Garcia, 

 (Tex. 1995) (“Second, the plaintiff must contend that the statute
unconstitutionally restricts the plaintiff’s rights, not somebody else’s.”).
       28 Tex. Health & Safety Code § 170A.003.


       29 Hall v. McRaven, 

 (Tex. 2017).




                                        17
against the government. 30 Instead, it provides “only a limited waiver for
challenges to the validity of an ordinance or statute.” 31 Claims for “other
types of declaratory relief are barred absent a legislative waiver of
immunity with respect to the underlying action.” 32 Thus, to obtain
declaratory relief against the government, it is necessary to show that
the challenged law is invalid because it is unconstitutional, preempted
by superior governing law, or barred for some similar reason. The
Declaratory Judgments Act does not permit a suit merely seeking
guidance about the application of the law to particular facts. 33


       30 Town of Shady Shores v. Swanson, 

, 552 (Tex. 2019).


       31 

 (emphasis added); see also Tex. Dep’t of Transp. v. Sefzik, 

 (Tex. 2011) (“[T]he [Uniform Declaratory Judgments Act] does
not waive the state’s sovereign immunity when the plaintiff seeks a declaration
of his or her rights under a statute or other law.”).
       32 Shady Shores, 590 S.W.3d at 553 (citing Sefzik, 

).

In Shady Shores, a former municipal employee cast her wrongful termination
suit as a suit for declaratory judgment that her termination violated the Open
Meetings Act as well as the due course of law provision of the Texas
Constitution. Id. at 547. Because the former employee was not seeking a
declaration regarding the validity of an ordinance or statute, we held that she
must look to an independent legislative waiver of immunity outside the
Declaratory Judgments Act. Id. at 553.
       33 A plaintiff who alleges that a state actor is improperly applying the

law through ongoing enforcement may instead bring an ultra vires claim
against that official. See Sefzik, 355 S.W.3d at 621–22 (holding that an
applicant challenging an agency’s denial of a permit did not plead a valid
Declaratory Judgments Act claim because the applicant did not challenge the
validity of a statute but the validity of an officer’s actions taken in applying the
statute); Tex. Parks & Wildlife Dep’t v. Sawyer Tr., 

, 388–89
(Tex. 2011) (holding suit seeking declaration that streambed was not navigable
brought under the Declaratory Judgments Act was barred by sovereign
immunity but allowing plaintiff to replead ultra vires claims). The Center
alternatively argues that the ultra vires exception to sovereign immunity




                                        18
       In this case, however, interpretation of the Human Life
Protection Act is a part of determining its constitutionality. The
constitutional challenges Dr. Karsan raises distinguish her declaratory
judgment claim from those cases in which a plaintiff raises no challenge
to the constitutional validity of the law in dispute. Courts are compelled
to give laws a constitutional reading if a constitutional reading can be
had. 34 This rule of construction does not, however, overcome the waiver
of sovereign immunity the Declaratory Judgments Act provides when a
state law’s constitutional validity is under review. 35
       The State responds that “immunity from suit is not waived if the
constitutional claims are facially invalid.” 36 That much is true.
Ultimately, if a constitutional challenge lacks merit, then the plaintiff
is not entitled to declaratory relief. Often, however, courts must
interpret the law to determine whether that law infringes on the claimed




applies. Because we consider Dr. Karsan’s claims under the Declaratory
Judgments Act despite the State’s assertion of immunity, we need not reach
her ultra vires claim.
       34 Paxton v. Longoria, 

, 539 (Tex. 2022) (“Under the
canon of constitutional avoidance, we should, ‘if possible,’ interpret a statute
in a manner that avoids constitutional infirmity.” (quoting Quick v. City of
Austin, 

 (Tex. 1998))).
       35 See Mexican Am. Legis. Caucus, 647 S.W.3d at 698–99 (observing that

jurisdiction turns on the validity of asserted constitutional claims, which in
turn depends on interpretation of the statute).
       36 See 

 at 698 (quoting Klumb v. Hous. Mun. Emps. Pension Sys., 

 (Tex. 2015)).




                                      19
constitutional right. 37 The validity of a challenge to the law in such cases
is intertwined with its interpretation. Such is the case here.
       Recognizing that Dr. Karsan’s constitutional claims turn in part
on the construction of the Human Life Protection Act, we next turn to it.
                                     IV
                   The Human Life Protection Act
       The Human Life Protection Act permits an abortion when:
       in the exercise of reasonable medical judgment, the
       pregnant female on whom the abortion is performed,
       induced, or attempted has a life-threatening physical
       condition aggravated by, caused by, or arising from a
       pregnancy that places the female at risk of death or poses a
       serious risk of substantial impairment of a major bodily
       function unless the abortion is performed or induced. 38
An abortion performed in compliance with this provision does not violate
the statute.
       The trial court’s order replaces this enacted law in two significant
ways. First, the order replaces the statutory text, which uses
“reasonable medical judgment,” with “good faith judgment.”
       The two are not diametric opposites. Presumably a doctor using
reasonable medical judgment most often is also acting in good faith. And
a doctor acting in good faith presumably often does so by exercising
reasonable medical judgment. Nonetheless, the Center argues that a


       37 E.g., Andrade v. NAACP of Austin, 

 (Tex. 2011)
(proceeding to the merits “cognizant that the [State] retains immunity from
suit unless the [plaintiffs] have pleaded a viable claim”).
       38 Tex. Health & Safety Code § 170A.002(b)(2) (emphases added).
Paraphrases of this statute in this opinion are not intended to supplant the
statutory text. As always, the statutory text provides the governing rule.




                                     20
subjective standard like good faith must replace the objective reasonable
medical judgment standard that the law employs.
      Second, the trial court’s order replaces “life-threatening physical
condition” with a different standard that includes, more generally:
(1) any “unsafe” pregnancy, (2) conditions “that cannot be effectively
treated during pregnancy” without “recurrent invasive intervention,”
and (3) “fetal condition[s]” where the unborn child is “unlikely to
survive” or to “sustain life after birth.” Again, the two are not
diametrically opposed. For example, a pregnancy complication that
presents “a life-threatening physical condition” to the mother is unsafe.
But neither are the order and the statute wholly consistent. The statute
as written focuses on a diagnosis of the mother’s physical condition. In
contrast, the trial court’s order permits an abortion without the
diagnosis that the mother has a life-threatening physical condition.
      Although there are other differences, these departures from the
law as written are the ones the Center urges courts to embrace to render
the Human Life Protection Act constitutional.
                                   A
                  Reasonable Medical Judgment
      We first examine the law permitting abortion “in the exercise of
reasonable medical judgment.” The law does not leave the reader to
wonder what this means. Instead, the law gives a definition commonly
understood in the medical profession. “Reasonable medical judgment” is
“a medical judgment made by a reasonably prudent physician,




                                   21
knowledgeable about a case and the treatment possibilities for the
medical conditions involved.” 39
      We examined the meaning of “reasonable medical judgment” in
In re State. 40 In that case, the trial court replaced “reasonable medical
judgment” with “good faith belief.” While we observed some overlap, we
held that the law does not permit an abortion based on belief alone. 41
Rather, a doctor must identify a life-threatening physical condition that
places the mother at risk of death or serious physical impairment of a
major bodily function unless an abortion is performed. 42
      The Center argues that such a standard means that doctors are
susceptible to a battle of the experts when not every doctor might reach
the same medical judgment in each case. We rejected such an
interpretation in In re State. “Reasonable medical judgment,” we held,
“does not mean that every doctor would reach the same conclusion.” 43
Rather, in an enforcement action under the Human Life Protection Act,
the burden is the State’s to prove that no reasonable physician would
have concluded that the mother had a life-threatening physical
condition that placed her at risk of death or of substantial impairment
of a major bodily function unless the abortion was performed. 44

      39 Tex. Health & Safety Code § 170A.001(4).


      40 

.


      41 Id. at 894.


      42 Id.


      43 Id.


      44 The standard echoes widely used reasonable care standards that
govern the medical profession in other contexts. “In a medical malpractice




                                    22
       The Center favors a law that would examine a particular doctor’s
intent in proceeding with an abortion. Contrary to its assessment, a
subjective standard is less insulating of a physician’s decision-making
than the objective one that the Legislature has adopted. As the State’s
expert observed, physicians can turn to peer-reviewed best practices
associated with a patient’s particular diagnosis and treatment.
       A subjective standard, in contrast, examines a doctor’s intent
instead of medical facts. 45 This intent would be subject to scrutiny based
on a physician’s views about abortion and its availability. Regardless of
those views, the law permits an abortion when reasonable medical
judgment would find one indicated to avert death or substantial bodily
impairment of a pregnant woman diagnosed with a life-threatening
physical condition arising from or aggravated by her pregnancy. With
confirmation of those facts through the exercise of reasonable medical



negligence case, the standard of care is what a doctor of ordinary prudence in
that particular field would or would not have done under the circumstances.”
Windrum v. Kareh, 

, 768 (Tex. 2019). “Reasonable medical
judgment” has been part of the regulation of abortion since 2013. Preborn Pain
Act, 83d Leg., 2d C.S., ch. 1, § 3, 

, 5014 (codified at
Tex. Health & Safety Code § 171.046) (banning abortions performed more than
twenty weeks post-fertilization unless “there exists a condition that, in the
physician’s reasonable medical judgment, so complicates the medical condition
of the woman that, to avert the woman’s death or a serious risk of substantial
and irreversible physical impairment of a major bodily function, other than a
psychological condition, it necessitates” an abortion).
       45 A doctor’s intent is relevant to other aspects of the law. An act is not

an “abortion” unless done “with the intent to cause the death of an unborn child
of a woman known to be pregnant.” Tex. Health & Safety Code § 245.002(1).
Additionally, the Human Life Protection Act limits only those abortions
performed “knowingly”; an “accidental or unintentional injury or death” of an
unborn child “does not constitute a violation.” Id. § 170A.002(a), (d).




                                       23
judgment, the law permits an abortion without inquiring into a
physician’s state of mind. At the same time, the law demands that
medical facts support the need for an abortion permitted under the Act.
A doctor may not disregard the requirement that the mother must have
a life-threatening physical condition or that the condition must place the
mother at risk of death or serious risk of substantial impairment of a
major bodily function unless an abortion is performed.
      The Center does not argue that the Texas Constitution requires
the Legislature to accept a physician’s belief over a physician’s diagnosis
based on the facts presented and reasonable medical judgment. With
respect to this dispute, the exercise has not been so much an
interpretation of what “reasonable medical judgment” means—after all,
the Legislature has defined it. Instead, the Center’s ask is for a court to
substitute a different standard for the one that is expressly written in
the statute. This is a call for amending the law, not for interpreting it.
                                    B
               Life-Threatening Physical Condition
      The Texas law permitting an abortion requires that the mother
have a “life-threatening physical condition aggravated by, caused by, or
arising from a pregnancy that places the female at risk of death or poses
a serious risk of substantial impairment of a major bodily function
unless the abortion is performed or induced.” 46 The Center complains
that this requirement is confusing, and thus it urged the trial court to
adopt a different standard.



      46 Tex. Health & Safety Code § 170A.002(b)(2).




                                    24
       The statute requires that the mother have a “life-threatening
physical condition.” “Life-threatening” means “capable of causing
death [or] potentially fatal.” 47 Black’s Law Dictionary defines it as “[o]f,
relating to, or involving illness, injury, or danger that could cause a
person to die.” 48 As the State’s expert acknowledged, a “life-threatening
physical condition” is not necessarily one actively injuring the patient;
it is a condition that has the potential to kill the patient. The condition
must arise from or be aggravated by the pregnancy, but death need not
be imminent, as we observed in In re State. 49 The law does not require
the life-threatening physical condition to have already caused damage
before a physician can act to preserve the mother’s life or major bodily
function. 50
       The final clause of the law confirms that the “life-threatening
physical condition” does not require a manifestation of that risk. The
life-threatening physical condition must “place[] the female at risk of
death or pose[] a serious risk of substantial impairment of a major bodily
function unless the abortion is performed or induced.” 51 The physician’s
reasonable medical judgment must be that an abortion will avert the
risk posed by the mother’s life-threatening physical condition.
       In short, a physician must perform a two-step inquiry, using
reasonable medical judgment, to determine if the Act permits an

       47 Life-threatening, Merriam-Webster Online (2024).


       48 Life-threatening, Black’s Law Dictionary (11th ed. 2019).


       49 682 S.W.3d at 894.


       50 Id.


       51 Tex. Health & Safety Code § 170A.002(b)(2).




                                      25
abortion. Does the patient have a physical condition aggravated by,
caused by, or arising from her pregnancy that could lead to her death?
If so, does the condition pose a risk of death or serious risk of substantial
impairment of a major bodily function unless an abortion is performed?
       In this case, we have an example of a risk that satisfies the law’s
inquiry. The experts agreed that an abortion is recommended to prevent
a woman’s death or serious bodily injury if she develops preterm
pre-labor rupture of membranes (or PPROM). The Legislature since has
amended other laws to plainly indicate that a physician who performs
an abortion in response to such a diagnosis is not liable under the
Human Life Protection Act. 52 With a diagnosis based on reasonable
medical judgment and the woman’s informed consent, a physician can
provide an abortion confident that the law permits it in these
circumstances. Ms. Zurawski’s agonizing wait to be ill “enough” for
induction, her development of sepsis, and her permanent physical injury
are not the results the law commands. 53
       The trial court’s order, however, does away with the statute’s
two-part inquiry and permits abortions for any “unsafe” pregnancy. All
pregnancies carry risks. The law limits permitted abortions to address
life-threatening conditions “aggravated by, caused by, or arising from a
pregnancy.” While merely being pregnant may increase a mother’s risk
of death or injury, pregnancy itself is not a “life-threatening physical



       52 See Act of May 26, 2023, 88th Leg., R.S., ch. 913, §§ 1, 3 (codified at

Tex. Civ. Prac. & Rem. Code § 74.552 and Tex. Penal Code § 9.35).
       53 The Legislature also has shielded physicians from liability for
abortions performed to treat an ectopic pregnancy. See id.




                                      26
condition” under the law. In differentiating ordinary risks attendant to
pregnancy—those that can be treated short of an abortion—from
conditions for which the law permits an abortion, the Legislature drew
the line at “life-threatening physical condition.” Because the trial court’s
order opens the door to permit abortion to address any pregnancy risk,
it is not a faithful interpretation of the law. A trial court has no
discretion to incorrectly interpret the law in ordering a temporary
injunction. 54
       The trial court also ordered that the law permit abortions for “a
fetal condition where the fetus is unlikely to survive the pregnancy and
sustain life after birth.” The Center argues that an abortion should be
permitted when an unborn child’s diagnosis is such that the child is
“unlikely” to “sustain life after birth,” even if that condition does not
present a life-threatening risk to the mother. The current law, however,
plainly does not permit abortion based solely on a diagnosis that an
unborn child has an abnormal condition, even a life-limiting one. 55


       54 Harris County, 672 S.W.3d at 7–8. The same is true for the part of

the order permitting abortion for any “condition exacerbated by pregnancy,
that cannot be effectively treated during pregnancy, or that requires recurrent
invasive intervention.”
       55 Some states that otherwise restrict abortion exclude cases in which

the child’s diagnosis is lethal. See 

 (excepting a fetus
“diagnosed with a lethal fetal anomaly”); 

(1)(b)(vi),
(19)(a) (defining abortion as excluding the “removal of an unborn child who is
deemed to be medically futile” which is defined as “in reasonable medical
judgment as certified by two physicians, the unborn child has a profound and
irremediable congenital or chromosomal anomaly that is incompatible with
sustaining life after birth”); 

-2R-3(a)(1); 16-2R-2 (excepting
abortion for a fetus with “a lethal anomaly which renders it incompatible with
life outside of the uterus”); 

(a)(iv) (excepting




                                      27
Rather, the law examines such a diagnosis in the context of the mother’s
physical health. An unborn child’s diagnosis must be coupled with
reasonable medical judgment that the mother has a life-threatening
physical condition and that an abortion is indicated to avert her death
or serious physical impairment. 56
                                      V
                         Constitutional Claims
       As we have construed the Human Life Protection Act in Part IV,
an abortion is permitted when a physician exercising reasonable
medical judgment determines that a life-threatening physical condition
has arisen during a woman’s pregnancy and an abortion is indicated to
avert the woman’s risk of death or a serious risk of substantial bodily
injury. The law does not require a woman to surrender her life or to first
suffer serious bodily injury before an abortion may be performed. Given
this construction, the history of abortion regulation and the text of the
Texas Constitution—which does not include general health or abortion
among the rights it protects—do not suggest state constitutional
boundaries broader than current law affords. We address the Center’s
constitutional arguments in turn.




abortions “when in the physician’s reasonable medical judgment, there is a
substantial likelihood that the unborn baby has a lethal fetal anomaly”). None
adopts the Center’s proposed “unlikely to sustain life” standard.
       56 This is not to say that a physician cannot treat the child in utero in

such circumstances. The definition of abortion excludes acts done to save the
life or preserve the health of an unborn child. Tex. Health & Safety Code
§ 245.002(1)(A).




                                      28
                                       A
                             Due Course of Law
       The due-course clause of the Texas Constitution states that no
citizen “shall be deprived of life . . . except by the due course of the law
of the land.” 57 An unsettled question in this Court is whether the
due-course clause protects substantive rights in addition to procedural
rights. 58 We need not decide this question today. Even if the due-course
clause were to encompass substantive rights, the evidence adduced does
not support the trial court’s order that the Human Life Protection Act
violates the Texas Constitution.
       If the due-course clause affords fundamental rights as a matter of
substantive law and not just procedural protections before the
government invades them, the right to life would be found among them.
The due-course clause has referred to “life” since statehood. 59 The
Center argues that the due-course guarantee of “life” extends more
generally to a person’s “health,” invoking legal commentators who




       57 Tex. Const. art. I, § 19.


       58 See Tex. Dep’t of State Health Servs. v. Crown Distrib. LLC, 

, 675 (Tex. 2022) (Young, J., concurring) (discussing inconsistent
treatment of the due-course clause and suggesting that it is not “a freestanding
font of substantive rights”).
       59 Tex. Const. of 1845, art. I, § 16 (“No citizen of this State shall be

deprived of life, liberty, property, or privileges, outlawed, exiled, or in any
manner disfranchised, except by due course of the law of the land.”); see also
Henderson v. State, 

 (Tex. Crim. App. 1997) (“Life is surely
the most basic right of all.”).




                                      29
include health as a personal right. 60 The State responds that these
commentators understood that “life” also includes the life of an unborn
child and laws prohibiting abortion have existed since that time.
Recognition of a fundamental right may take both lives into account.
       The State has regulated abortion in Texas for as long as the
due-course clause has protected “life.” 61 Before the United States
Supreme       Court      declared     Texas’s      criminal     abortion      laws
unconstitutional in 1973 in Roe v. Wade, 62 Texas law prohibited abortion
unless “procured or attempted to be procured by medical advice for the
purpose of saving the life of the mother.” 63 After that decision, Texas
regulated abortion within Roe’s limits, contouring those regulations to
permit abortions necessitated in medical emergencies. 64 The Human


       60 See 1 William Blackstone, Commentaries, *125 (noting a “right of

personal security” that “consists in a person’s legal and uninterrupted
enjoyment of his life, his limbs, his body, his health, and his reputation”); John
Locke, Second Treatise of Government 9, § 6 (C.B. Macpherson ed., Hackett
Publ’g Co., 1980) (1690) (describing man’s obligation not to “take away, or
impair the life, or what tends to the preservation of the life, the liberty, health,
limb or goods of another”).
       61 Compare Act approved Feb. 9, 1854, 5th Leg., R.S., ch. 49, § 1, 

, 58, reprinted in 3 H.P.N. Gammel, The Laws of Texas
1822–1897, at 1502, 1502 (Austin, Gammel Book Co. 1898), with Tex. Const.
of 1845, art. I, § 16.
       62 

 (1973).


       63 Tex. Penal Code of 1856, art. 536. We have found no case, nor have

the parties cited any cases, interpreting and applying the law permitting
abortion to save the life of the mother.
       64 See, e.g., Act of May 25, 1999, 76th Leg., R.S., ch. 395, § 1, 

, 2467 (codified as revised at Tex. Fam. Code ch. 33) (requiring
parental notice for abortion provided to minors except if “a condition exists that
. . . necessitates the immediate abortion of her pregnancy to avert her death or




                                        30
to avoid a serious risk of substantial and irreversible impairment of a major
bodily function”); Woman’s Right to Know Act, 78th Leg., R.S., ch. 999, § 1,

, 2931 (codified as revised at Tex. Health & Safety
Code § 171.012) (requiring informed consent before performing an abortion,
“[e]xcept in the case of a medical emergency”). In 2011, the Legislature clarified
that “medical emergency” means “a life-threatening physical condition
aggravated by, caused by, or arising from a pregnancy that, as certified by a
physician, places the woman in danger of death or a serious risk of substantial
impairment of a major bodily function unless an abortion is performed.” Act of
May 5, 2011, 82d Leg., R.S., ch. 73, § 1, 

, 342, 346
(codified as revised at Tex. Health & Safety Code §§ 171.002(3) & 171. 0124).
The Legislature also barred state funding for hospital districts that “use[] tax
revenue of the district to finance the performance of an abortion,” except for
abortions performed “in the case of a medical emergency.” Act of June 27, 2011,
82d Leg., 1st C.S., ch. 7, § 15.02, 

, 5462 (codified at
Tex. Health & Safety Code § 285.202). “Medical emergency” included both
“severe fetal abnormality” and a condition that “in a physician’s good faith
clinical judgment, complicates the medical condition of the pregnant woman
and necessitates the immediate abortion of her pregnancy to avert her death
or to avoid a serious risk of substantial impairment of a major bodily function.”
Id. A “severe fetal abnormality” is defined as “a life threatening physical
condition that, in reasonable medical judgment, regardless of the provision of
life saving medical treatment, is incompatible with life outside the womb.” Id.
In 2013, the Legislature banned abortions performed more than twenty weeks
post-fertilization unless “there exists a condition that, in the physician’s
reasonable medical judgment, so complicates the medical condition of the
woman that, to avert the woman’s death or a serious risk of substantial and
irreversible physical impairment of a major bodily function, other than a
psychological condition, it necessitates” an abortion. Preborn Pain Act, 83d
Leg., 2d C.S., ch. 1, § 3, 

, 5014 (codified at Tex.
Health & Safety Code § 171.046). The statute did not prohibit an abortion if
“performed on an unborn child who has a severe fetal abnormality.” Id. at 5015
(codified at Tex. Health & Safety Code § 171.046(c)). In 2017, the Legislature
banned dismemberment abortions and partial-birth abortions. Act of May 26,
2017, 85th Leg., R.S., ch. 441, § 6, 

, 1165–67 (codified
at Tex. Health & Safety Code §§ 171.101–.154). For dismemberment abortions,
the Legislature reserved an exception for those “necessary in a medical
emergency,” giving “medical emergency” the same definition as the 2011
informed-consent law. Id. at 1166, 1172 (codified at Tex. Health & Safety Code
§ 171.152(a) and Tex. Occ. Code § 164.062(a)(19)). For partial-birth abortions,
the Legislature excepted abortions “necessary to save the life of a mother




                                       31
Life Protection Act became effective “the 30th day after . . . the issuance
of a United States Supreme Court judgment” returning regulatory
authority of abortion to the states. 65 In permitting abortion to address
the mother’s life-threatening condition to avert her risk of death or
serious physical impairment, the Act is consistent with earlier versions
of Texas law.
       The history of abortion regulation in Texas demonstrates the
Legislature’s unmistakable commitment to protecting the lives of
pregnant women experiencing life-threatening complications while also
valuing and protecting unborn life. Throughout the decades, no settled
formulation of the scope of that protection existed. Even so, no court
declared any historical law regulating abortion unconstitutional under
the Texas Constitution’s due course of law provision—or any other
provision.
       In this case, Dr. Karsan did not present evidence that she desired
to provide a particular patient with an abortion that, in her view, the
Texas Constitution requires but the statute forbids. Dr. Karsan did not
provide specifics but instead listed pregnancy complications for which
she would consider offering an abortion. The Center argues that




whose life is endangered by a physical disorder, physical illness, or physical
injury, including a life-endangering physical condition caused by or arising
from the pregnancy.” Id. at 1165 (codified at Tex. Health & Safety Code
§ 171.102(b)).
       65 Human Life Protection Act of 2021, 87th Leg., R.S., ch. 800, § 3,

, 1887. The Supreme Court’s ruling in Dobbs v.
Jackson Women’s Health Organization, 

 (2022), satisfied the
effectiveness condition.




                                     32
abortion in these situations must be lawful under the Human Life
Protection Act; otherwise, the statute is unconstitutional.
       Courts do not issue injunctions, however, based on lists of
hypothetical future possibilities. “Litigation based upon hypothetical
possibility rather than concrete fact is apt to be poor litigation. The
demand for specificity, therefore, stems from a judicial desire for better
lawmaking.” 66 A court does not strike down a law as unconstitutional
based on a hypothetical situation. 67 Thus, to obtain a judicial decree
enjoining a state law, Dr. Karsan’s claim must be proven with sufficient
specificity—an adjudication in a particular case. Guidance about a law’s
application outside of a redressable injury is a proper undertaking for
the other two branches of government. The Legislature anticipates and
shapes the future. 68 The executive branch implements statutes through




       66 Patterson v. Planned Parenthood of Hous. & Se. Tex., Inc., 

 (Tex. 1998) (quoting Gene R. Nichol, Jr., Ripeness and the
Constitution, 

, 177 (1987)). Dr. Karsan’s testimony
described one patient with some detail: a mother with a subchorionic bleed. Dr.
Karsan testified that she considered the mother’s bleeding significant enough
to recommend an abortion, but a maternal–fetal medicine specialist did not
agree with that assessment. Dr. Karsan’s testimony reveals that her decision
was rooted in her compliance with hospital policy, not in the legal standard for
permitting an abortion.
       67 See Yancy v. United Surgical Partners Int’l, Inc., 

(Tex. 2007) (“[T]here is no need to strike [a statute] down because it might
operate unconstitutionally in another case.”).
       68 Hous. Tap & Brazoria Ry. Co. v. Randolph, 

 (1859)

(“The judiciary act on past facts. The legislature acts by devising for the future.
It is the peculiar province of the legislative department, to shape future events,
so as to obviate and remedy, the jars and difficulties of the past.”).




                                        33
rulemaking. 69 But the judiciary dwells in the house of the concrete past,
assembled through the gradual accretion of judgments in specific cases.
       The Center points to the decisions of other state high courts to
argue that the Texas Constitution’s guarantee of “life” covers more than
“biological existence.” 70 We have no difficulty agreeing, in the abstract,
and have construed this Texas statute consistently with its text as not
requiring that the mother be in imminent peril or first suffer serious
physical impairment to receive an abortion. The law entrusts physicians
with the profound weight of the recommendation to end the life of a child
to preserve the life of the mother, a decision made in light of the specific


       69 E.g., Tex. Gov’t Code § 2001.021; see also In re State, 682 S.W.3d at

894 & n.5.
       70 The Supreme Court of Oklahoma interpreted one abortion statute to

require “a woman to be in actual and present danger in order for her to obtain
a medically necessary abortion” and consequently struck it as
unconstitutional, but it upheld a second statute permitting abortions done to
“preserve [the woman’s] life.” Okla. Call for Reprod. Just. v. Drummond, 

, 1131–32 (Okla. 2023). The Supreme Court of North Dakota upheld
a preliminary injunction against an abortion statute that provided only an
affirmative defense that abortion was necessary to prevent the death of the
woman and interpreting their constitution as protecting against “severe, life
altering damage.” Wrigley v. Romanick, 

, 242–44 (N.D. 2023).
The Supreme Court of Idaho upheld an abortion statute that excepted
abortions “necessary to prevent the death of the pregnant woman,” holding
that that language “leaves wide room for the physician’s ‘good faith medical
judgment.’” Planned Parenthood Great Nw., Haw., Alaska, Ind., Ky. v. State,

, 1203–04 (Idaho 2023) (quoting 

(3)(a)(i)–
(ii)). The Supreme Court of Indiana vacated a preliminary injunction against
an abortion statute, acknowledging that the Indiana Constitution’s right to
protect one’s own life “extends beyond just protecting against imminent death,
and it includes protecting against ‘great bodily harm.’” Members of the Med.
Licensing Bd. of Ind. v. Planned Parenthood Great Nw., Haw., Alaska, Ind.,
Ky., 

, 976 (Ind. 2023) (quoting Larkin v. State, 

,
670 (Ind. 2021)).




                                      34
circumstances of the mother and the pregnancy. We do not foreclose a
due course of law challenge as a defense to civil or criminal enforcement
in a specific case. We conclude, however, that Dr. Karsan did not meet
her burden to show that a constitutional right to life or health is broader
than what the law currently affords.
                                       B
                             Equal Protection
       The Center also challenges the Human Life Protection Act under
the equal protection provisions of the Texas Constitution. The Texas
Constitution provides that “[e]quality under the law shall not be denied
or abridged because of sex, race, color, creed, or national origin.” 71 The
Center argues that the Act violates this provision because only women
can become pregnant and potentially seek an abortion.
       Our Court considered and rejected this argument over twenty
years ago in Bell v. Low Income Women of Texas. 72 In that case, abortion
providers challenged the Hyde Amendment’s prohibition of the use of
federal funds to provide abortions, except “in the case where a woman
suffers from a physical disorder, physical injury, or physical illness,


       71 Tex. Const. art. I, § 3a. Section 3 provides, “All freemen, when they

form a social compact, have equal rights, and no man, or set of men, is entitled
to exclusive separate public emoluments, or privileges, but in consideration of
public services.” Id. § 3. Section 3a more specifically protects against
discrimination on the basis of a protected class, and because we conclude that
the Center has not made its case under that section, we decline to separately
analyze the claims under Section 3. See In re McLean, 

(Tex. 1987) (“[W]e conclude that the Equal Rights Amendment [Section 3a] is
more extensive and provides more specific protection than both the United
States and Texas due process and equal protection guarantees.”).
       72 

 (Tex. 2002).




                                       35
including a life-endangering physical condition caused by or arising
from the pregnancy itself, that would, as certified by a physician, place
the woman in danger of death unless an abortion is performed.” 73 Our
Court held that the “classification here is not so much directed at women
as a class as it is abortion as a medical treatment, which, because it
involves a potential life, has no parallel as a treatment method.” 74
Applying rational-basis review, the Court determined that the law
served a legitimate governmental purpose and thus upheld the funding
scheme. 75 For similar reasons, the United States Supreme Court
likewise has held that the Hyde Amendment did not discriminate under
the federal equal protection clause. 76
      Like the law under review in Bell, the Human Life Protection Act
regulates the provision of abortion. 77 The Act does not single out a
protected class for disparate treatment but instead differentiates among
medical indications for an abortion, regulating the provision of medical
care within that class. Because the law does not discriminate against a
protected class, courts must uphold it if a rational basis exists for it. 78
Under this standard, “a party asserting that a classification is



      73 

 at 256 (quoting Consolidated Appropriations Act, Pub. L.
No. 106–554, Appendix A, H.R. 5656, § 509(a)(2), 

, 2763A-70
(2001)).
      74 Id. at 258.


      75 Id. at 264.


      76 Harris v. McRae, 

, 322–23 (1980).


      77 See 95 S.W.3d at 263–64.


      78 Id. at 264.




                                    36
unconstitutional must demonstrate that the action is not rationally
related to a legitimate governmental purpose.” 79 We uphold the
classification if it reasonably promotes the governmental purpose. 80
      In particular, the Center argues that the State lacks a rational
interest in regulating abortion in response to diagnosed fetal
abnormalities. The Center advocates that abortion be permitted when
an unborn child is “unlikely” to have a “sustained” life, beyond “hours or
days.” The State responds that it has a legitimate, long-recognized
interest in regulating abortion to protect unborn life.
      As painful as such circumstances are, that the law does not
authorize   abortions    for   diagnosed   fetal   conditions   absent   a
life-threatening complication to the mother does not render it
unconstitutional. Even before the Supreme Court overturned Roe v.
Wade, courts recognized that legitimate interests support abortion
regulation laws, including “preservation of prenatal life at all stages of
development” and the “protection of maternal health and safety.” 81 The
balance the Legislature has struck is not assailable in court because a
different balance arguably achieves these purposes.
      The Center argues that the State’s interest in prenatal life fades
when “the health risks to the pregnant patient and the fetus are so
severe that the pregnancy will never result in a child with sustained
life.” But in situations where the mother has such a risk, manifested as


      79 Id. (citing Richards v. League of United Latin Am. Citizens, 

, 310–11 (Tex. 1993)).
      80 Klumb, 

.


      81 Dobbs, 

.




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a life-threatening physical condition, current law permits an abortion to
address the mother’s risk of death or serious physical impairment. We
conclude that the temporary-injunction record does not demonstrate
that the Act lacks a rational relationship to a legitimate governmental
purpose such that the Act violates Texas’s equal protection clauses.
                             *      *      *
      Texas law permits a life-saving abortion. Under the Human Life
Protection Act, a physician may perform an abortion if, exercising
reasonable medical judgment, the physician determines that a woman
has a life-threatening physical condition that places her at risk of death
or serious physical impairment unless an abortion is performed. The law
permits a physician to intervene to address a woman’s life-threatening
physical condition before death or serious physical impairment are
imminent.
      Because the trial court’s injunction departed from the law as
written without constitutional justification, we vacate its order.




                                        Jane N. Bland
                                        Justice

OPINION DELIVERED: May 31, 2024




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