Texas Medical Board proposes rules on medical exceptions to abortion ban

By Philip Jankowski and Marin Wolf
https://www.dallasnews.com/

AUSTIN – The Texas Medical Board released its first guidance on medical exceptions to Texas’ near-total abortion ban Friday, proposing rules outlining when a doctor can legally terminate a pregnancy.

Doctors have faced uncertainty in the process, triggering multiple lawsuits from Texans facing, in some cases, possibly fatal complications to their pregnancies.

The board largely opted to be general in its proposed rules and did not give guidance on exceptions specific to certain medical conditions, such as trisomy 18, a chromosomal condition tied to abnormalities. Instead, it leaned heavily on a recent Texas Supreme Court ruling in opting to place the decision in the hands of each doctor.

“We were very hesitant into putting an exhaustive list out there that, in fact, it would hinder the ability of specific circumstances to be looked at in a way that would be fair to both parties,” said Dr. Sherif Zaafran, the board’s president.

The one condition the board named as a qualifying exception was ectopic pregnancies, when a fertilized egg implants and grows outside the uterus. The condition is fatal to the fetus and can produce life-threatening bleeding if untreated.

The board voted unanimously to begin the process by publishing the rules. The board will take public input for 30 days and hold at least one meeting to gather input on the rules.

Medical board staff will review the comments and present them to the board, which can adopt the rules as written or make changes, which would begin a new comment period.

Texas law bans abortion unless the life of the mother is endangered. The board’s action Friday was the first move to clarify what conditions qualify as medical exceptions to the state’s abortion ban, in place since the Supreme Court overturned Roe vs. Wade in 2022.

The effort followed the Texas Supreme Court’s ruling against Kate Cox, who sought permission last year to end a pregnancy after receiving a lethal fetal diagnosis, saying doctors recommended an abortion to protect her health and future fertility. The court said physicians, not judges, should determine if an abortion is medically appropriate and suggested the Texas Medical Board should provide clarification.

Lobbyists Amy and Steve Bresnen petitioned the Texas Medical Board in January, requesting that it clarify acceptable exceptions under Texas law.

Addressing the board Friday, Amy Bresnen said she recognized the Legislature and courts had placed the medical board in a tough position of creating rules for one of the most contentious issues in Texas.

“As we move forward, we ask that you not let the perfect be the enemy of the good,” she said. “We also ask that you not make the situation worse.”

Taylor Edwards, a plaintiff in one of the first major lawsuits to challenge Texas’ abortion bans and who traveled outside Texas for an abortion after receiving a fatal fetal diagnosis, told the board she was pregnant again because she got the care she needed.

“I will get to be a mother because I got an abortion,” she said. “That is something that I think is being missed with all these conversations about lists and unborn babies and all the things. It’s just being overlooked.”

Edwards said three doctors confirmed that an abortion was necessary in her case, but none would perform the procedure because of fears they would lose their medical license or be charged with a crime.

In response, Zaafran, the board’s president, said he intended to make sure something like that doesn’t happen.

“What we’re hoping is that by giving clarification that we are yielding to medical judgment — to reasonable medical judgment — that you should hopefully not get into a scenario like that ever again,” he said.

Sue Swayze Liebel, state policy director with Susan B. Anthony Pro-Life America, said the proposed rules’ reliance on a doctor’s judgment was the right course of action. She said the board should provide clear guidance to combat misinformation about the Texas law.

“The Texas abortion law is not broken,” Liebel said. “If there are doctors who are confused, the solution isn’t to upend standing policy but rather to educate them that they can use their reasonable medical judgment.”

The promulgated rules state that the medical board is clarifying medical exceptions to abortion restrictions in anticipation of complaints being lodged against doctors who perform the procedure.

The proposed rules state a doctor must exercise “reasonable medical judgment” in recommending the procedure and must document how the decision to terminate a pregnancy was made, how not performing an abortion would be dangerous to the mother and what research, including second opinions, was conducted before carrying out the procedure.

All complaints against doctors performing abortions would be examined under the standard practices of the medical board and would occur separately from criminal allegations.

The Center for Reproductive Rights criticized the proposed rules, saying any medical judgment from a doctor would be scrutinized by the attorney general’s office and that the reporting requirements were burdensome.

“The rules Texas Medical Board proposed today contain more of the same rhetoric we have been hearing for years: that physicians should just read the language of the exception and exercise their reasonable medical judgment, even when we know from Kate Cox’s case that the attorney general will continue to second-guess that judgment,” the organization said in a statement.

Fort Worth OB-GYN Dr. Andrea Palmer said in an interview this week that she’s witnessed numerous situations where doctors were unsure whether to perform an abortion during a medical emergency out of fear of breaking the law. Palmer said she’s watched doctors struggle to decide just how infected a woman must be to justify an abortion.

“Many of my colleagues have been in that situation where they ask, ‘Is she sick enough to call it sick?’ You’re really kind of waiting for the next shoe to drop,” Palmer said.

Many practitioners have urged the board to issue guidance that could clarify similar scenarios.

“My concern is that there are so many clinical situations that there is absolutely no way that they can cover all of the bases,” Palmer said.

Texas has three abortion bans on the books, each with unique specifications. The Texas Heartbeat Act allows private individuals to bring civil suits against anyone who performs or aids an abortion after the detection of fetal cardiac activity. A so-called “trigger ban” went into effect when the U.S. Supreme Court overturned Roe vs. Wade, outlawing abortion procedures. Then there’s a pre-Roe ban, which is still possibly in effect, that criminalizes performing or providing the means for an abortion.

This story, originally published in The Dallas Morning News, is reprinted as part of a collaborative partnership between The Dallas Morning News and Texas Metro News. The partnership seeks to boost coverage of Dallas’ communities of color, particularly in southern Dallas.