After Danielle Mathisen and her husband realized they were having a baby girl, they started calling her “Mini.” “We thought she would be a mini-me,” Mathisen said.
For months, Mathisen’s pregnancy seemed normal. Genetic testing went well. Her parents were delighted: this would be the first grandchild in the family.
But in September 2021, two weeks after Texas banned abortion after six weeks of pregnancy, Mathisen went in for her 18-week anatomy scan. And Mathisen, then a 25-year-old fourth-year medical student quickly realized something was up terribly wrong.
Doctors soon confirmed Mathisen’s fears: the fetus had only one kidney, severe scoliosis, a partially formed umbilical cord, and malpositioned hands and feet. The fetus also had an underdeveloped brain.
Mathisen’s pregnancy was in danger of ending before she ever gave birth. If Mathisen were to give birth, her baby would likely die shortly afterwards from breathing problems. “She doesn’t have enough brains to tell her lungs how to breathe,” Mathisen said.
If she were to continue the pregnancy, Mathisen’s health could also be at risk.
Shortly after her diagnosis, Mathisen started calling abortion clinics in Colorado. They were booked solid. Her mother eventually found her an appointment at a clinic in New Mexico, where Mathisen said appointments were open to women from Texas. The appointment was for the next day.
When she returned to Texas afterward, Mathisen and her husband told everyone that she had suffered a miscarriage. “Continuing a pregnancy that would end not with a baby in the crib, but with a baby in the coffin – that made no sense to me personally,” she said.
But now Mathisen has made her story public. She is one of 20 Texas women who have sued their home state, claiming they have been denied medically necessary abortions. While Texas bans almost all abortions; the procedure should be allowed under state law in medical emergencies. But abortion rights advocates and doctors in the state say the law’s exceptions are so vague that doctors can’t decipher them. Instead, they must watch until patients become sick enough to intervene.
The Texas Supreme Court will hear arguments in the case on Tuesday. Rather than strike down Texas’ abortion ban outright, the women — as well as two doctors who also joined the case — hope the court will agree to clarify the state’s abortion exceptions.
A judge in Austin, Texas, heard arguments in the case in July, during a hearing believed to be the first time women have testified in court about their experiences with abortion since the U.S. Supreme Court overturned Roe v Wade last year.
Amanda Zurawski, the lead prosecutor in the case, said she learned her cervix had dilated too early in her pregnancy. She had no chance of delivering a healthy baby, but she also couldn’t get an abortion in Texas because doctors could still detect a fetal heartbeat, she said. Zurawski eventually developed sepsis and spent three days in intensive care.
Samantha Casiano testified that she discovered her fetus had been diagnosed with anencephaly, a condition in which parts of a fetus’ skull and brain do not develop properly. But she didn’t have the money to travel out of state for an abortion, so she gave birth to a baby girl who had trouble breathing and died just four hours after birth. Casiano was so overwhelmed on the stand that while she was testifying, she threw up.
A few weeks after the women’s testimony, in August, the judge issued a preliminary injunction ordering doctors to perform abortions in cases where patients have an “emergency medical condition” that threatens their life or health.
But Texas immediately appealed this ruling, freezing the preliminary injunction. In court filings, Texas attorneys argued that doctors, not the state, are responsible for what happened to the women in the lawsuit.
“These independent decisions by outside medical providers, right or wrong, break any perceived chain of causation” between the abortion ban and a medical emergency, they claimed.
In any case, the lawyers argued, these women do not have the legal right to file a lawsuit because the pregnancies at issue in the lawsuit are a thing of the past and no longer at risk of imminent harm from Texas abortion laws. Several women involved in the lawsuit, including Mathisen, became involved pregnant again.
Nick Kabat, a staff attorney at the Center for Reproductive Rights, which represents the women in the Texas case, said the Texas Supreme Court –consists exclusively of Republicans – might buy that argument. Kabat is preparing for the possibility that the judges will rule that in order to file a lawsuit, attorneys need a plaintiff to be actively in the midst of a medical emergency.
“They might say that what you need is a woman who is in an emergency situation and urgently needs an abortion,” Kabat said. ‘So basically someone whose amniotic fluid is dripping down their leg or who is actively bleeding, with an IV connected that really keeps them alive. And you know what, if they say that, we will find that patient, because unfortunately the patient is in Texas.
In late August, the Texas government passed new legislation that in theory allows doctors to perform abortions in cases of ectopic pregnancies — a life-threatening condition — or when a pregnant person’s waters break too early for the pregnancy to be viable.
But critics say these exceptions don’t cover the wide range of nuanced issues that can arise during pregnancy. Furthermore, rather than completely protecting a doctor from prosecution, the new exceptions provide exceptions Doctors can only defend themselves in court after being sued – a legal mechanism known as an “affirmative defense.”
“Whatever solution the Texas government thinks it has adopted has not solved this problem,” Kabat said. “That law has not changed the way physicians practice.”
Mathisen eventually moved to Hawaii for her OB-GYN residency, instead of staying in Texas, where she had once hoped to work.
“I’m currently pregnant with another girl, and I would love for her to live across the street from her grandmother,” Mathisen said. “Right now, I can’t do that because I don’t think I could go back to Texas and practice medicine if I can’t do abortions.”
Since the Texas lawsuit was first filed in March, the Center for Reproductive Rights has filed similar lawsuits in Idaho and Tennessee. The Center also represents a woman who has filed a federal complaint against an Oklahoma hospital that, she says, refused to give her an abortion because of a dangerous and unviable pregnancy. Instead, hospital staff allegedly told the woman to wait in the hospital parking lot until she “collapsed.”
If the Texas Supreme Court rules in favor of women like Mathisen, it will not set a legal precedent for lawsuits in other states. But Kabat believes it would help.
“These medical exemptions for abortion are worded in very similar ways,” Kabat said. “A Texas ruling in our favor would be powerfully persuasive to judges deciding similar cases in other states.”
Throughout her ordeal, Mathisen clung to one small source of comfort: On the ultrasound, Mathisen could see that Mini’s hands were bent into the shape of a heart.
“Just like the heart that Taylor Swift makes,” Mathisen said. “The heart she made with her hands, through all my tears and sobs, I thought, ‘She’s okay.’ It was just a sign that everything would be fine even if we terminated the pregnancy.”