Texas Drafts Abortion Ban Exception Guidance Following Lawsuits

The Texas Medical Board is seeking to address legal uncertainty on the state’s total abortion ban with proposed guidance that patients and reproductive health advocates say doesn’t go far enough in clarifying situations that may qualify as a medical emergency exception.

The 16-member board voted Friday to make the proposal available for public comment for at least 30 days.

The proposal defines a “medical emergency” as a “life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”

The guidance comes in response to a petition to the board filed by attorneys and lobbyists Steve and Amy Bresnen after the Texas Supreme Court ruled unanimously in December to vacate an order that authorized a doctor to perform an abortion on 31-year-old Kate Cox, whose doctors said her fetus had a fatal diagnosis.

The court said in that ruling that the Texas Medical Board would be best suited to provide specific guidance on what would qualify under the state law’s exception for medical emergencies.

Health providers in Texas and other states across the country have repeatedly reported difficulty providing reproductive health care amid state abortion bans and other restrictions implemented in the wake of the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization in 2022 that overturned Roe v. Wade.

The Texas abortion law has also been at the center of Zurawski v. State of Texas, a case pending before the state’s high court based on a lawsuit brought by a group of patients who said they were denied abortion care despite facing health and fertility risks associated with their pregnancies.

Proposed Guidance

The board’s proposal includes some definitions and guidelines for physicians to submit justification for an abortion under the Texas law’s medical emergency exception, but stops short of outlining specific diagnoses or situations that could count as a “life-threatening physical condition.”

Under the draft rule, “reasonable medical judgment” that justifies giving a patient an abortion means “medical judgment made by a reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical conditions involved.”

The board also said in its proposal that physicians providing an emergency abortion must document in the patient’s medical record that the abortion is being provided in response to a medical emergency that places a patient in danger of death or at risk of damaging a major bodily function. A physician should also note how they determined there was a threat of death or other risk, and how their medical judgment was informed by test results, medical literature, or other materials, as well as any other alternative treatments that were attempted or ruled out.

Physicians should also explain how a “determination was made that performing a procedure in such a way as to give the child the best opportunity to survive would create a greater risk to the woman.”

If Texas determines a doctor’s judgment is incorrect, health professionals risk first-degree felony prosecutions and fines of at least $100,000 per violation under the Texas abortion ban.

Board Limitations

The board’s president, Sherif Zaafran, said that while the panel hopes to ameliorate the legal conundrum facing Texas physicians, the panel is limited in its ability to provide guidance outside of what’s already in existing Texas statutes. He added the board doesn’t want to create an exhaustive list of medical emergencies that he argued could further limit physicians’ medical decision making.

“If you put a list out there, that may be a list that is accurate in one setting but inaccurate in another setting,” Zaafran said, adding that the board will be carefully reviewing comments on the proposal and will come back to the issue at the board’s June meeting.

But attorneys, reproductive health advocates, and plaintiffs in the Zurawski case who commented on the proposal in Friday’s meeting argued the guidance only reiterates Texas law and that the board needs to do more to protect physicians. Doing this, they said, will prevent additional situations in which patients with nonviable pregnancies or facing significant health risks need to travel out of state to obtain an abortion.

“You’ve got people that are scared to death and they’re facing death,” Steve Bresnen told board members. “We think that you can do more than what it seems your proposed rule” suggests.

Kaitlyn Kash, one of the plaintiffs in the Zurawski case, told board members that she had “yet to hear something in these rules that sounds like it would address what happened to me and my family.” Kash said she was forced to travel out of state for an abortion after her child was diagnosed with several genetic conditions.

The proposed rule does “nothing to address fetal anomalies that hundreds of women face” and “will only leave confusion for providers who are counseling parents who are doing the best they can,” Kash said.

Richard Todd Ivey, an OB-GYN and an officer for the Texas district of the American College of Obstetricians and Gynecologists, told the board that the law’s standard of “reasonable medical judgment” is “so heavily scrutinized and the dependencies are so severe” that physicians are left with “confusion and hesitation.”

“It is absolutely unacceptable for doctors and health-care professionals to be punished” for “delivering evidence-based care,” Ivey said.

The Texas Alliance for Life argued Friday the Texas law is necessary, claiming it is “saving unborn babies’ and pregnant women’s lives.”

“The law allows doctors to perform abortions to save pregnant women’s lives in rare and tragic cases when medically necessary,” said Amy O’Donnell, the organization’s communications director.