TX doctors ‘really scared’ amid vague abortion laws. Will state board clarify exceptions?
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Confusion around Texas’ abortion law has scared doctors, who worry they could be prosecuted, fined or lose their medical license for performing an abortion procedure when a patient’s life or health is at risk.
The Texas Medical Board could offer some clarity, but North Texas OB-GYNs are warning about the difficulties of legislating often-murky medical emergencies.
The board, which oversees the licensing and regulation of physicians, is scheduled to consider and take possible action on “rules regarding exceptions to the ban on abortions” on Friday. The agenda item comes after of confusion over what qualifies as a medical emergency under Texas’ abortion laws.
Doctors, legal scholars and reproductive health experts have said state law is unclear, raising questions about when an abortion can legally be performed.
Texas law allows an abortion when a doctor practicing “reasonable medical judgment” believes “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.”
The Texas Supreme Court weighed in after a North Texas woman sued the state to obtain an abortion. The court said in December the Texas Medical Board “can do more to provide guidance in response to any confusion that currently prevails.
“Each of the three branches of government has a distinct role, and while the judiciary cannot compel executive branch entities to do their part, it is obvious that the legal process works more smoothly when they do,” the Dec. 11 opinion reads.
The Texas Medical Board’s upcoming discussion comes after Texas attorneys and lobbyists Amy and Steve Bresnen, who are married, filed a petition with the board seeking guidance on when an abortion can be performed under state law. They saw a comment from the board’s director holding off on clarifications until issues played out in court, in response to the state supreme court, and in turn asked the board to consider clarifying its rules.
“The law ought to work,” said Steve Bresnen. “We can all be in dispute on what the law ought to be, but once it’s enacted it should work.”
Abortion laws in Texas
OB-GYNs in Texas have been on alert and on the defensive since Senate Bill 8 went into effect in September 2021, said Dr. Andrea Palmer, a Fort Worth OB-GYN. The bill bans abortions when cardiac activity can be detected in a fetus, typically around six weeks. The law lets a person sue someone who performs an abortion or aids in the performance of an abortion.
After Roe v. Wade was overturned in June 2022, Texas’ “trigger” law went into effects, carrying criminal penalties and banning most abortions. A person who performs, induces, or attempts an abortion could face up to 20 years in prison if the abortion is unsuccessful and up to life if it is successful. They could also face a fine of at least $100,000 for each violation.
The laws are in addition to Texas’ pre-Roe abortion ban.
Texas law does not carve out exceptions for abortions cases of rape or incest.
“The way that SB 8 was written and the way that abortion has been criminalized in the state of Texas has us all, I think, really scared to do what we know is the right medical thing for patients, a lot,” Palmer said. “Right now, this exception of basically to save the life of the mother is very, very broad. The spectrum of when is somebody is dying is really a hard to pinpoint.”
The question of when a medical emergency allows for an abortion was central to a case involving a Dallas-area woman, Kate Cox, who ultimately traveled out of state to access the procedure.
Cox sued the state in December, asking for permission to have an abortion after her fetus was diagnosed with with full trisomy 18, a disorder in which babies have three copies of chromosome 18 instead of two. Doctors told her that her baby would likely be stillborn or wouldn’t live long after birth.
Cox’s attorney argued that she fell within the exemptions to Texas’ abortion law. A state district judge ruled that she could get an abortion, but Texas Attorney General Ken Paxton still warned of possible repercussions.
The Texas Supreme Court was weighing the case soon after it was announced that Cox was leaving left the state to obtain the procedure. The court sided against Cox soon after. It was in that opinion that the court told the Texas Medical Board it could do more to clarify when an exception is allowed.
What clarifications should be made?
Palmer, the Fort Worth OB-GYN, would like “clear cut guidance” on situations when abortions are permitted. She’d like to see the medical board put out exceptions for rape, incest and non-viable fetuses.
“I would love for them to say that there would not be a limitation on being able to intervene when we know a fetus is not going to be compatible with life outside of pregnancy,” she said.
There are situations that are “black and white,” like when a baby is forming without a fetus or brain and therefore will not be compatible with life, Palmer said. But there’s also a lot of gray area, for example when talking about conditions like trisomy 18 and trisomy 13, or abdominal wall defects.
“There’s just so many specific circumstances,” Palmer said. “I just really feel like it’s going to be hard to legislate exceptions. But I think there are a handful of places where they could start that would provide precedence and some guidance for physicians and for patients.”
Dr. Shanna Combs, a Fort Worth OBGYN and past president of the Tarrant County Medical Society, said any clarifications should use medical terminology, not terms created for legal purposes. But ultimately, every situation is different and no list of exceptions will ever be complete, she said.
“In theory it sounds nice to have more concrete language, but unfortunately, there’s still so much gray and every situation is different, that I’m not sure how much it would change,” she said. “And then also, the concern that we have is, you can’t make language for every particular situation. Even if you thought of everything under the sun, there’s probably something you didn’t think about.”
Combs also questioned the level of comfort that clarified rules would give doctors.
“Even if the Texas Medical Board says, ‘Oh OK, that’s OK.’ Well, that’s the Texas Medical Board,” Combs said. “What can they do? So they handle our license, so maybe they wouldn’t take our license away, but is that going to stop a prosecutor from pursuing criminal charges? And then also, we still have the civil possibility as well.”
Combs suspects the board will ultimately defer to the Legislature for clarifications.
The Bresnens’ proposed rules outline what is considered “reasonable medical judgment” and lists some of the medical conditions that would be covered by an exception to abortion law.
In a response letter, the board’s general counsel said rule making options have been under consideration since the law went into effect and “alternate draft language” will be considered at the March 22 board meeting.
A spokesperson for the board said questions about the process for adopting rules will be addressed Friday. A public comment period of at least 30 days is expected before a rule is adopted.
Brent Annear, a spokesperson for the Texas Medical Association, wrote in an email exchange that the association believes patients and physicians need clarity. The association will offer feedback at the appropriate time during the rule making process, he said.
Ultimately, Palmer wants common sense guidelines and exceptions.
“The comment period is obviously going to bring some passionate and heated arguments from both sides of the table, but I’m just hoping that science and medicine prevail, and that we will be able to start doing the right thing for our patients in so many of these situations,” Palmer said.
