The uncertainty surrounding the contours of laws restricting Texans’ access to abortion has cost the state $14.5 billion over the last year and stands to continue to impede attracting top talent to the state in the future, according to an amicus brief recently filed with the Texas Supreme Court.
Bumble Inc., based in Austin, was the lead signatory on the brief that was joined by Dallas-based Match Group, SXSW, a handful of boutique law firms, as well as doctors, hospitality, banking, investment and real estate companies. In all, 40 businesses and members of the business community signed onto the brief urging the court to “provide clarity on when health care providers are permitted to intervene consistent with Texas’s statutes governing reproductive health care.”
“The confusing medical exceptions are increasing the cost of business in Texas, driving away top talent, risking potential future business coming to the state, and threatening a diverse workforce. … In starkest terms, Texas’s confusing, restrictive laws governing reproductive health care are driving women of reproductive age, and their partners, from Texas,” the amici argued.
The Texas Supreme Court is slated to hear oral arguments in Texas v. Zurawski Tuesday morning. The plaintiffs in that suit are a group of women who had pregnancy complications and whose doctors declined to provide abortions in light of the ban, as well as doctors concerned about how the law will apply to them. They are challenging three laws restricting abortion — the so-called “trigger ban” passed in 2021 that forbids anyone from performing an abortion at any point during pregnancy and subjects violators to first-degree felony charges, S.B. 8, also passed in 2021 that bans most abortions after six weeks and a 1925 law that criminalizes abortion.
The laws contain an exception in cases. The trigger ban, for example, makes an exception when the patient 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.”
The plaintiffs argue the language is ambiguous, has caused confusion among doctors and patients and must be clarified.
The brief filed Monday is not the only amicus attention this case has received. Twenty states — New York, California, Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington — and the District of Columbia signed on to a brief filed Nov. 13 in support of the plaintiffs suing Texas.
“Amici have a strong interest in protecting the rights of their residents who may need such emergency abortion care while present as students, workers, or visitors in Texas,” the brief reads. “And when Texas residents are denied emergency abortion care, many undertake lengthy travel to amici States —exacerbating the risks to their health and assuming often significant financial burdens — to receive the emergency care that they need.”
Texas’ laws in particular burden “already overwhelmed hospital systems” in nearby New Mexico and Colorado, the brief argues.
A group of national women’s rights organizations — the Women’s and Children’s Advocacy Project, Equal Means Equal and the Elizabeth Cady Stanton Trust — also filed a brief in support of the plaintiffs suing Texas. Those entities petitioned the court to intervene in the lawsuit, but alternatively asked the court to consider its brief as an amicus brief.
“Here the state has not crafted its 2021 abortion restrictions to satisfy narrow tailoring because the restrictions forbid abortion after six weeks of gestation unless the pregnant woman’s life is at stake, or a woman faces a ‘serious risk of substantial impairment of a major bodily function,’” the amici argue. “This language is hardly ‘tailored’ to serve the state’s interest, much less is it narrowly tailored, because it subordinates the state’s well-settled compelling interest in preserving the health of a pregnant woman to its less than compelling interest in preserving a nonviable embryo, or a more developed fetus that has no chance at health or life.”
The docket did not indicate Tuesday whether the court had made a decision on the request to intervene.
One amicus brief was filed in support of the state of Texas. It came from members of the state legislature. Ten state senators and 80 state representatives signed on to the brief arguing the suit represents a direct challenge to the lawmakers’ “constitutional authority to establish public policy for the State of Texas and to protect the lives of unborn children in accordance with that policy.”
“The regulation of abortion is a sensitive issue which, like most such issues, should be decided by the legislature, where the voice of the people may be heard and where compromise and accommodation of divergent viewpoints are possible,” the lawmakers argue. “Having failed in the political process, abortion advocates have turned to the courts in an effort to subvert the democratic will. That effort should be resisted.”
Other signatories to the business amicus brief include Amalgamated Bank; Argent; ATX Television Festival; Biscuit Home; Blue Sky Partners; Brentwood Social House; Central Ceremonies; Central Presbyterian Church; CHA Law Group, PC; Civitech; Doctors for Fertility; Eco-Stylist; Elevate Bartending; Good Work Austin; Goodnight Hospitality; GSD&M; HarbourView Equity; KraveBeauty; L’Oca D’Oro; Layfield Law Practice; MaieB Hospitality; Natalie Crawford, MD; Pershing Management; Plant Cowboy; Present Tense Hospitality; Schoox Inc.; Schwartz Immigration Law, PLLC; Shannon Clark, MD; Small Business Majority; Storable, Inc.; Texas Prestige Landscape Co.; The Draper Law Firm; The Goodking Co.; The Riveter; and Zilker Properties.
The legislators who filed an amicus brief in support of the state are state senators Brian Birdwell, Donna Campbell, Brandon Creighton, Kelly Hancock, Phil King, Lois Kolkhorst, Tan Parker, Angela Paxton, Charles Schwertner and Drew Springer; and state representatives Hon. Steve Allison, Charles (Doc) Anderson, Trent Ashby, Ernest Bailes, Cecil Bell, Jr., Keith Bell, Greg Bonnen, Brad Buckley, Benjamin Bumgarner, DeWayne Burns, Dustin Burrows, Briscoe Cain, Giovanni Capriglione, Travis Clardy, David Cook, Tom Craddick, Charles Cunningham, Drew Darby, Jay Dean, Emilio DeAyala, Mark Dorazio, James Frank, Frederick Frazier, Gary Gates, Stan Gerdes, Charlie Geren, Craig Goldman, Ryan Guillen, Sam Harless, Caroline Harris, Cody Harris, Brian Harrison, Richard Hayes, Cole Hefner, Justin Holland, Lacey Hull, Todd Hunter, Carrie Isaac, Jacey Jetton, Kyle Kacal, Ken King, Stephanie Klick, John Kuempel, Stan Lambert, Brooks Landgraf, Jeff Leach, Terri Leo-Wilson, Janie Lopez, J.M. Lozano, John Lujan, Will Metcalf, Andrew S. Murr, Geanie W. Morrison, Candy Noble, Tom Oliverson, Angelia Orr, Jared Patterson, Dennis Paul, Four Price, Glenn Rogers, Matt Schaefer, Nate Schatzline, Michael Schofield, Matt Shaheen, Hugh D. Shine, Shelby Slawson, Reggie Smith, John T. Smithee, David Spiller, Lynn Stucky, Valoree Swanson, Carl H. Tepper, Kronda Thimesch, Ed Thompson, Tony Tinderholt, Steve Toth, Ellen Troxclair, Gary VanDeaver, Cody Vasut and Terry M. Wilson.
The business amici are represented by Sarah Stewart, James C. Martin, Sarah B. Johansen and Emily Harbison of Reed Smith.
The state amici are represented by their respective attorneys general.
The women’s rights amici are represented by Wendy J. Murphy of New England Law and Jason C.N. Smith of Fort Worth.
The state legislature amici are represented by Paul Benjamin Linton of Northbrook, Illinois, and Christopher Maska of Austin.
Texas is represented by Lanora C. Pettit, Sara B. Baumgardner, Beth Klusmann and Natalie D. Thompson of the office of the attorney general.
Zurawski and the other plaintiffs are represented by Molly Duane, Marc Hearron, Nicolas Kabat and Astrid Ackerman of the Center for Reproductive Rights in New York, Austin Kaplan of Kaplan Law Firm in Austin and Jamie A. Levitt, J. Alexander Lawrence, Claire N. Abrahamson and Aditya V. Kamdar of Morrison & Foerster.
The case number is 23-0629.
Correction: An earlier version of this story incorrectly stated the number of Texas laws being challenged in this suit. The error has been corrected.