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Texas Medical Board proposes new guidance for abortion medical exceptions

The guidance was disappointing to reproductive rights advocates who were seeking more specificity and a list of conditions that could qualify.
Posted: 11:11 AM, Mar 22, 2024
Updated: 2024-03-22 12:11:47-04
Executive Director of the Texas Medical Board Stephen Brint Carlton, J.D., speaks prior to the start of the board meeting in the George H.W. Bush Building in Austin on March 22, 2024.

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(Texas Tribune) — The Texas Medical Board proposed a general definition for emergency medical exceptions to the state’s otherwise strict abortion ban at its meeting Friday, disappointing some advocates who were seeking a specific list of conditions that would qualify.

The board’s proposed rule defined “medical emergency” as “a life threatening condition aggravated by, caused by or arising from a pregnancy that is certified by a physician places the woman in danger of death or a serious impairment or a major bodily function unless an abortion is performed.”

Other reproductive rights advocates hoped the board’s draft rule could provide a shield for doctors at risk of being sued for performing abortions.

However, the board said its process would be “separate and independent” from any in a criminal trial.

The board listed several ways a doctor could document why an abortion was necessary, including what placed the woman in danger of death and how they determined that was the risk, using things like “diagnostic imaging test results, medical literature, second opinions and or medical ethics committees that were used or consulted and the what alternative treatments were attempted and failed or rolled out.”

The board said they could not reference rape or incest, as they were “out of the board’s jurisdiction,” as the Texas Legislature did not cite that as an exemption for a legal abortion in the law.

Members of the public and media listen during the Texas Medical Board Full Board Meeting in the George H.W. Bush Building in Austin, Texas on Mar. 22, 2024. All the seats in the room were filled as everyone listened while they talked about agenda item number 28, ‘Consideration and possible action on rules regarding exceptions to the ban on abortions.’
Members of the public and media fill a packed room during a Texas Medical Board meeting in the George H.W. Bush Building in Austin on March 22, 2024. Credit: Maria Crane/The Texas Tribune

It also defined “reasonable medical judgment” as “medical judgment made by a reasonably prudent physician knowledgeable about a case and the treatment possibilities for the medical conditions. Involved.”

The proposal came after two Texas attorneys and lobbyists filed a petition in January asking the board to issue “clear guidance” for when the law would permit an abortion.

For at least 30 days, there will be space for public comment before the board puts a final rule into place. The board most likely will address the rule again in June, said Dr. Sherif Zaafran, president of the Texas Medical Board. Zaafran said Attorney General Ken Paxton’s office was consulted and weighed in when making the rule.

Amy Bresnen, one of the petitioners, said the separation of the board’s determination from criminal trials “defeats the entire purpose.”

Doctors reported 52 abortions performed in 2023 as a medical emergency or to preserve the health of the woman, according to a report from the Texas Health and Human Services Commission.

In a final memo from the Bresnens before the Friday meeting, they said they also knew from public reports that “women left the state to obtain abortions their Texas physicians were afraid to perform due to draconian statutory penalties.”

The Texas Supreme Court was the firstto ask the Medical Board to issue guidance for doctors navigating the state’s abortion laws in December, after the courtshot down Kate Cox’s bid to terminate her nonviable pregnancy.

Some board members initially rejected the court’s request, saying they would hold off until all judicial issues were resolved — including an ongoing challenge to the medical exception part of the law in Zurawski v. Texas. But the Bresnens’ petition pulled the board back into the debate, asking them to qualify the language. This time, the board chose to act.

“The idea of doing guidance just for the sake of doing guidance was something that we didn't feel like it wasn't our place to get into. Guidance, essentially, is like giving an FAQ: ‘here's what we think this means,’” Zafraan said. “A rule is essentially something that has the force of law to it, something that we don't like to wade into unless we do it very carefully.”

Many advocates hoped the rule would address three main issues: at what point in a medical emergency can a doctor perform an abortion, how can doctors ensure their medical judgments meet the standard of “reasonable medical judgment,” and what legally sufficient evidence must be present to show that an abortion was or wasn’t necessary.

The last one would have helped doctors faced with legal repercussions for performing an abortion — something the medical board can’t protect them from, said Bee Moorhead, executive director of Texas Impact, an interfaith organization that advocates on behalf of some of the state’s largest religious groups.

“It's not sufficient to fully protect doctors,” Moorhead said. “There's nothing the board can do to fully protect doctors because of the way jeopardy for doctors is baked into the bill.”

But Moorhead has hope because the board seems open to public comment going forward, and is “obviously making a very deliberate effort to facilitate public participation in this rule making, which is exactly what we had hoped.”

The board’s 16 current members, appointed by the governor, normally examine complaints against physicians. The rule proposal follows a trend of medical boards across the country becoming a key force around abortion bans. But its step into making this rule, and clarifying abortion law, is a new “stretch” for the Texas agency, Moorhead said.

“We've all been very aware of the lack of the medical board's response and guidance, so I think this is a small step,” Dr. Andrea Palmer, an OB/GYN in Fort Worth, said. “It's going to be darn near impossible to outline every possible exception. I would argue — this is why we shouldn’t legislate medical care.”

Neelam Bohra is a 2023-24 New York Times disability reporting fellow, based at The Texas Tribune through a partnership with The New York Times and the National Center on Disability and Journalism, which is based at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University.

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