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 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

Supreme Court of Texas
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No. 23-0629
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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

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On Direct Appeal from the
353rd District Court, Travis County, Texas
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JUSTICE BUSBY, joined by Justice Lehrmann, concurring.

In ratifying our present Constitution, the people of Texas granted
their elected Senators and Representatives all “Legislative power of this
State.” TEX. CONST. art. III, § 1. This grant includes the power to limit
abortion, which was already a state criminal offense at the time of
ratification.1
Using this power to limit and penalize abortion affects the
unalienable rights of mothers and their unborn children to life and the
unalienable rights of physicians and third parties to liberty from
criminal confinement.2 Accordingly, the Constitution also imposes a
solemn duty on Legislatures that enact abortion laws, courts that
interpret them, and executive branch agencies charged with employing
their expertise to elaborate and enforce them: to speak “clearly”3 and “in
explicit terms”4 so that any “depriv[ation] of life [or] liberty” will comply
with the “due course of the law of the land.” TEX. CONST. art. I, § 19.5
As we have long recognized, “it would be inexcusable for a government
to . . . punish its citizens for an infraction of a law which in its terms
could not be understood by them.” State v. Int’l & G.N. Ry., 179 S.W.
867, 868 (Tex. 1915).

1See Act approved Feb. 9, 1854, 5th Leg., R.S., ch. 49, § 1, 1854 Tex.
Gen. Laws 1502; TEX. PENAL CODE arts. 531-36 (1856); Act approved Feb. 12,
1858, 7th Leg., R.S., ch. 7, 1858 Tex. Gen. Laws 1044.
2 THE DECLARATION OF INDEPENDENCE , para. 2 (U.S. 1776) (“We hold
these truths to be self-evident, that all men are created equal, that they are
endowed by their Creator with certain unalienable Rights, that among these
are Life, Liberty and the pursuit of Happiness.”).
3 Houston, E. & W. Tex. Ry. v. Campbell, 45 S.W. 2, 4 (Tex. 1898).
4 Mo., Kan. & Tex. Ry. v. State, 100 S.W. 766, 767 (Tex. 1907).
5 See Tex. Boll Weevil Eradication Found. v. Lewellen, 952 S.W.2d 454,
461 (Tex. 1997) (explaining that law is valid exercise of legislative power when
it is “justified by a rational legislative purpose and does not violate a specific
constitutional provision”).

2
But courts asked to carry out this high duty in a particular case
cannot substitute their own views of wise public policy for the words
chosen by the Legislature. I agree that the trial court’s injunction does
just that, and I therefore join the Court’s opinion. Nor can courts decide
questions not presented by the parties in the case before them. See, e.g.,
Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 782 (Tex. 2020).6
Because this case does not provide the Court with an opportunity to
settle all uncertainties that those affected by Texas abortion laws may
encounter, I also write to make clear what the Court does not decide
today.
I

Certain classes of statutes “must be couched in such explicit
terms that the party upon whom the statute is to operate may, with
reasonable certainty, ascertain what the statute requires to be done and
when it must be done.” In re Hecht, 213 S.W.3d 547, 572 (Tex. Spec. Ct.
Rev. 2006) (citing Mo., Kan. & Tex. Ry. v. State, 100 S.W. 766, 767 (Tex.
1907)). Two distinct doctrines work together to hold the Legislature to
its duty to speak clearly and specifically when its actions implicate
unalienable rights: vagueness and the rule of strict construction of penal
statutes.

6This limitation does not apply to the Texas Medical Board, which we
explained in In re State has the authority and expertise to issue regulations
addressing “any confusion that currently prevails” in this sensitive area of
medical judgment. 682 S.W.3d 890, 894 & n.5 (Tex. 2023). But instead of
fulfilling its own obligation to speak clearly and specifically, the Board has
proposed a regulation that does nothing more than restate the relevant
statutes. 49 Tex. Reg. 2164, 2164-65 (2024) (to be codified at 22 TEX. ADMIN.
CODE §§ 165.7-165.9) (proposed Mar. 25, 2024) (Tex. Med. Bd.).

3
Vagueness, the broader and blunter of the two doctrines,
recognizes that a statute violates constitutional due-course rights and is
therefore void if it “fails to give fair notice of what conduct may be
punished, forcing people to guess at the statute’s meaning, . . . [and]
invites arbitrary and discriminatory enforcement by failing to establish
guidelines for those charged with enforcing the law.” Comm’n for Law.
Discipline v. Benton, 980 S.W.2d 425, 437 (Tex. 1998) (internal citations
and quotation marks omitted); see also Welch v. United States, 578 U.S.
120, 124 (2016). Put another way, “[w]hen persons of common
intelligence are compelled to guess a law’s meaning and applicability,
the law violates due process and is invalid.” King St. Patriots v. Tex.
Democratic Party, 521 S.W.3d 729, 743-44 (Tex. 2017).7
Additionally, the “vagueness doctrine requires different levels of
clarity depending on the nature of the law in question. Courts demand
less precision of statutes that impose only civil penalties than of criminal
statutes because ‘their consequences are less severe’”; but “when the
statute’s language . . . threatens to inhibit the exercise of constitutional
rights, a stricter vagueness standard applies.” Benton, 980 S.W.2d at
437-38. And although a few vague applications will not result in a
statute being void for vagueness, a “vague provision is [not]

7 Given the Court’s reference to the doctrine of constitutional avoidance,
it is important to recognize that using this doctrine to rewrite a vague statute
is improper. See Holder v. Humanitarian Law Project, 561 U.S. 1, 18 n.3 (2010)
(chiding dissent for employing constitutional avoidance to assign different
meaning to defined statutory term); Skilling v. United States, 561 U.S. 358,
423 (2010) (Scalia, J., concurring in part) (“I do not believe we have the power,
in order to uphold an enactment, to rewrite it.”). Instead, as I discuss next, the
doctrine applies to ambiguous penal statutes—that is, statutes with more than
one reasonable meaning—in the form of a rule of strict construction.

4
constitutional merely because there is some conduct that clearly falls
within the provision’s grasp.” Johnson v. United States, 576 U.S. 591,
602 (2015); see also United States v. Nat’l Dairy Prods. Corp., 372 U.S.
29, 32 (1963) (“[S]tatutes are not automatically invalidated as vague
simply because difficulty is found in determining whether certain
marginal offenses fall within their language.”).
The rule of strict construction of penal statutes, for its part,
“requires ambiguous criminal laws to be interpreted in favor of the
defendants subjected to them.” United States v. Santos, 553 U.S. 507,
514 (2008); see also United States v. Hoang, 636 F.3d 677, 682 (5th Cir.
2011). In applying this doctrine, which is called the rule of lenity in the
criminal context, this Court has “consistently held that penal statutes
should be strictly construed.” City of Houston v. Jackson, 192 S.W.3d
764, 770 (Tex. 2006) (citing Brown v. De La Cruz, 156 S.W.3d 560, 565
(Tex. 2004)); see TEX. GOV’T CODE § 311.035(b). Additionally, it is
well-established “that the more severe the penalty, and the more
disastrous the consequence to the person subjected to the provisions of
the statute, the more rigid will be the construction of its provisions in
favor of such person and against the enforcement of such law.” Mo.,
Kan. & Tex. Ry., 100 S.W. at 767.
II

Although respondents call the Human Life Protection Act
confusing, they do not argue that it is void for vagueness or that its
application to a particular situation would violate the rule of strict
construction. But because the Court partially construes the Act to
explain why the trial court’s injunction is improper, we must keep in

5
mind the Legislature’s obligation—and our own—to speak clearly and
specifically lest we unintentionally resolve an ambiguity in the statutory
language or contribute to confusion where no ambiguity exists.
Texas law provides certain exceptions to the prohibition against
knowingly performing an abortion. To qualify for the Act’s exception at
issue here, it must be shown (among other things) that, “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.” TEX. HEALTH & SAFETY C ODE § 170A.002(b)(2).8
At first glance, respondents’ expressed confusion about this
exception is understandable. For example, doesn’t a life-threatening
physical condition by its very nature place the mother at risk of death
and pose a serious risk of substantial impairment of a major bodily
function—indeed of all bodily functions? If so, why did the Legislature
bother to include the second part of the statute talking about risks?

8Some of the other statutory exceptions take the form of exclusions from
the definition of abortion. See TEX. H EALTH & SAFETY CODE § 245.002(1). One
such exception excludes acts done “with the intent to . . . save the life or
preserve the health of an unborn child.” Id. § 245.002(1)(A). The Court notes
that this exclusion allows a doctor to treat an unborn child with a life-limiting
condition in utero. Ante at 27-28 & n.56. But the Court correctly does not
suggest any view regarding how the exclusion might apply in a
multiple-pregnancy situation such as that of Ashley Brandt—an issue the trial
court did not specifically address. As the Court observes, Ms. Brandt sought
to abort one unborn child with an invariably fatal fetal condition so that her
other unborn child could survive. Ante at 7.

6
Relatedly, does the reference to a condition that “poses a serious risk of
substantial impairment of a major bodily function” do any independent
work in defining when an abortion is permitted, or is it merely
surplusage given the requirement that the condition be
“life-threatening”?
Closer study reveals that, as the Court explains, determining
whether an abortion is permitted under this statutory exception has two
steps. First, the mother must have one or more physical conditions
caused by or arising from her pregnancy or pre-existing physical
conditions aggravated by her pregnancy, and at least one of those
conditions must have the potential to kill her—though death need not
be imminent. Second, performing or inducing an abortion must
mitigate either the mother’s risk of death or a serious risk of substantial
impairment of one of her major bodily functions posed by a condition
that satisfies the first step.
The steps differ in that the first measures the impact of
pregnancy on any physical conditions the mother has or develops, while
the second assesses whether an abortion will affect at least one of those
conditions by mitigating at least one of the specified risks it poses. Thus,
for example, the exception applies if (1) pregnancy aggravates a
mother’s pre-existing physical condition to the point that the condition
becomes life-threatening, and (2) an abortion would mitigate a serious
risk that the condition would substantially impair a major bodily
function—even if it would not also mitigate the risk of death.9

9 As this example shows, the Court’s statements that Texas law permits
a “life-saving abortion” are correct but incomplete. More precisely, Texas law

7
Both steps are determined under the objective standard of
reasonable medical judgment, which is a judgment “made by a
reasonably prudent physician, knowledgeable about a case and the
treatment possibilities for the medical conditions involved.” Id.
§ 170A.001(4). That standard is neither novel nor unique to the abortion
context. Rather, it echoes the familiar standard of care that applies to
all common-law negligence claims alleging medical malpractice.10
The Court rightly goes no further because the parties have not
briefed any other disagreements regarding the statute’s meaning, nor is
addressing any other potential ambiguities necessary to decide this case.
For example, the Court’s opinion and the concurrences should not be
read to decide the extent to which an abortion must avert or mitigate a
risk of death or of impairment of a major bodily function for the
exception to apply.11 Nor should any of the opinions be understood to
express a view regarding how principles of vagueness or lenity would

permits an abortion only in response to certain life-threatening conditions and
when the abortion would address certain risks.
10See, e.g., Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019) (“In a
medical malpractice 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.”); RESTATEMENT (THIRD) OF TORTS : MEDICAL MALPRACTICE
§ 5(a) (AM. L. INST., Tentative Draft No. 2, 2024) (defining “[t]he standard of
reasonable medical care” for negligence claims).
11 The statute does not address this question directly, but the word
“unless” arguably suggests that at least some mitigation of the risk is required.
The words “substantial” and “serious”—which the statute uses with reference
to a risk of impairment of a major bodily function—may also shed light on the
extent to which an abortion must address a given risk. And the objective
standard of “reasonable medical judgment” may affect how courts review any
assessment of risk mitigation.

8
apply to “any confusion that currently prevails.” In re State, 682 S.W.3d
890, 894 (Tex. 2023).12
With these observations, I join the opinion of the Court.

J. Brett Busby
Justice

OPINION FILED: May 31, 2024

12Courts have confronted vagueness challenges to several varieties of
state statutory exceptions permitting abortion, but they have had few
occasions to decide whether any ambiguity exists in such exceptions that
should be construed in favor of lenity. Cf. United States v. Vuitch, 402 U.S. 62,
71 (1971) (holding exception for abortions “necessary for the preservation of
the mother’s life or health” not vague); Isaacson v. Brnovich, 563 F. Supp. 3d
1024, 1034-35 (D. Ariz. 2021) (holding exception for “genetic abnormality of the
child” vague), cert. granted before judgment, order vacated, 142 S. Ct. 2893
(2022); Tex. Med. Providers Performing Abortion Servs. v. Lakey, 806 F. Supp.
2d 942, 960 (W.D. Tex. 2011) (holding definition of “medical emergency” for
purposes of exception not vague), rev’d on other grounds, 667 F.3d 570 (5th Cir.
2012); Jane L. v. Bangerter, 809 F. Supp. 865, 878 (D. Utah 1992) (holding
exception for “serious medical emergency” not vague), rev’d on other grounds,
61 F.3d 1493 (10th Cir. 1995), judgment rev’d sub nom. Leavitt v. Jane L., 518
U.S. 137 (1996).

9