June 12, 2024

Reproductive Rights and HIV 

Reproductive rights in this country must require that all people have access to sexual and reproductive health services to support their decisions, including contraception, abortion, fertility treatment, and related information and education. Abortion bans infringe on sexual and reproductive rights and bodily autonomy. We know from the literature that women with HIV in the U.S. are disproportionately affected by the negative consequences of abortion bans, with targeted perinatal HIV transmission reductions and HIV elimination efforts facing challenges as a result.

With abortion bans being challenged in courts across the county, we can begin to learn more about how these cases are being argued and what it might mean for sexual health care overall and HIV care in particular. An example of a recent challenge happened in Texas with Zurawski v. State of Texas, a landmark case that seeks to clarify a confusing exception to the state’s abortion laws.

UNABLE TO ACCESS ABORTION CARE IN TEXAS 

After the overturn of Roe v. Wade in the summer of 2022, Texas banned all abortions except to save the life of the pregnant patient. Almost immediately, women began to come forward with stories of difficult pregnancies worsened by doctors’ hesitations and uncertainty.

Thirty-one-year-old Taylor Edwards’ story began when she and her husband learned she was pregnant in November 2022. At 17 weeks of gestation, the couple learned that her fetus had a fatal condition and would die at or before birth. After a confirmed diagnosis, her doctors told her they couldn’t help her if she wanted to terminate the pregnancy.

Although Edwards was unable to access abortion care in Texas because she wasn’t imminently dying, she was eventually able to obtain an abortion at a Colorado clinic two weeks later. During those two weeks, she started to get sick and vomit daily.

Edwards has been awaiting the ruling on her lawsuit filed against the state of Texas on behalf of 20 women, including herself, who had pregnancy complications and were denied abortion care as a result of the state’s near-total ban on abortion.

PLAINTIFF’S ARGUMENT

The group of plaintiffs argued that the language of the law was ambiguous and that it results in a culture of “fear and uncertainty” among doctors as to when they can legally provide abortions in emergency-life-threatening situations. If physicians violate the law in Texas, they face up to 99 years in prison, loss of their medical license and at least $100,000 in fines.

The trial court agreed with the plaintiffs and issued an injunction on the ban. The case went to the Texas Supreme Court on appeal.

MAIN TAKEAWAYS FROM THE TRIAL COURT RULING      

• Doctors are left without clarity on when they can provide abortion care for patients in many dire medical situations.
• Abortions are not permitted for lethal fetal conditions.
• Doctors may perform abortions for life-threatening conditions like preterm premature rupture of membranes (PPROM).

TEXAS SUPREME COURT REJECTS ABORTION BAN CHALLENGE

The Texas Supreme Court has now ruled that despite the horrific stories told by plaintiffs, the state’s abortion bans are clear in their exceptions. “Texas law permits a life-saving abortion,” the court wrote. “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 court also said that as “painful as such circumstances are,” referring to fatal fetal anomalies, “the law does not authorize abortions for diagnosed fetal conditions absent a life-threatening complication to the mother.” That fact, according to the court, does not render the ban unconstitutional.

The court did call on the Texas Medical Board to issue guidance to help doctors better understand when they can perform an abortion in the eyes of the law. That guidance, which has not yet been finalized, has been criticized for offering little reassurance and, in some cases, confusing the issue further.

LITTLE CLARITY AND MORE CONFUSION

In an interview with Salon, counsel for the plaintiff, Marc Hearron, noted that “physicians have been begging to have these statutes interpreted in medical language so that they can understand that they can apply….And the Texas Supreme Court’s opinion wiped that away and says, we understand that these exceptions may not be super clear, but there’s nothing we can or will do about it. Any time this issue has come up before the highest court in a state, that state has recognized that right under the state constitution to terminate a pregnancy when needed to preserve the patient’s life and health, and they read the life exception very broadly. We’ve seen that in Oklahoma, North Dakota and in Indiana.”

Plaintiffs like Edwards have to figure out what the ruling means for their own future. Edwards shared with Salon that she’d like another child, but she’s afraid she won’t be able to access health care in Texas. The concurring opinion raised the potential for future challenges to state abortion bans on the grounds of vagueness, writing that “at first glance, respondents’ expressed confusion about this exception is understandable.”

REPRODUCTIVE JUSTICE FOR ALL PEOPLE

Equitable health care for people who want to bear children should be a basic right of American citizenship. To that end, addressing the adverse experiences of patients who wish to bear children through a comprehensive sexual and reproductive justice framework can work to remove barriers to well-being and ensure the best health outcomes for any and all persons, both those with and without HIV.

Since the beginning of the HIV epidemic, HIV has been considered separate from other aspects of health. While this strategy may have been necessary in the formation of our current systems of STI and HIV care and treatment, those systems have not adequately served the needs of all people across the gender spectrum. Making sexual and reproductive health services a normal part of STI and HIV care and prevention is an essential step in improving access to care and health outcomes for all people, including those with or vulnerable to HIV.

Sexual and reproductive health care must take into account all important aspects of a person’s identity and experience. These experiences include criminalization and experiences of violence and trauma. Policies that do not account for the trauma of gender-based violence–like the state bans on abortion–fail to provide equitable access to health care.

CONCLUSION  

Zurawski v. State of Texas is the first lawsuit brought on behalf of women denied abortions since the U.S. Supreme Court eliminated the constitutional right to abortion and cleared the way for states to ban it entirely. While Texas’s abortion laws contain an exception for the life and health of the pregnant person, the state’s hostile abortion landscape has made physicians afraid to rely on the exception.

These extreme bans criminalizing abortion have stoked fear and confusion among pregnant people and doctors throughout the state. The Academy wants to hear from its members who are navigating these implications of our current landscape of reproductive rights. If you need assistance advancing policies in your state for health equity for people who give birth please contact our public policy department at chauncey@aahivm.org.