Texas Medical Board proposes new guidance for abortion medical exceptions

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The Texas Medical Board proposed a broad definition for what constitutes an emergency medical exception under the state’s otherwise strict abortion ban at its meeting Friday, disappointing some abortion rights advocates who were seeking a specific list of conditions that would qualify.

The board’s proposal follows pressure from the Texas Supreme Court — in addition to doctors and patients across the state who have been calling for guidance in navigating the abortion ban as cases of Texans forced to carry to term nonviable pregnancies have emerged over the past year in the wake of the overturning of Roe v. Wade.

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.”

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.

“You got people that are scared, and they’re facing death,” said Steve Bresnen, one of the lobbyists who initially petitioned the board for guidance. ”We think that you can do more than it seems that your proposed rule was. In that sense, we’re disappointed.”

Defining the Law

Multiple plaintiffs from Zurawski v. Texas, a challenge to the medical exception part of the law still in the courts, testified to the board after they announced the proposed language. One plaintiff, Kaitlyn Kash, said an abortion “saved her life.”

“I have yet to hear something in these rules that will address what happened to me and my family,” Kash told the board. “I heard you say you don’t make the law, but I’m here today because I tried to get the Legislature to act when I lobbied last session and couldn’t even get an amendment on fetal anomaly out of committee. I tried to get the courts to help us…and they said we needed to wait for you.”

“And now you’re saying it’s not your responsibility either,” Kash added. “So where else am I supposed to go?”

The board listed several ways a doctor could document why an abortion was necessary, including using tools like “diagnostic imaging test results, medical literature, second opinions and or medical ethics committees that were used or consulted.”

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

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 at the earliest, 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.

<b>A Need For Guidance</b>

The choice to draft a rule proposal came after Bresnen and his wife Amy, both Texas attorneys and lobbyists, filed a petition in January asking the board to issue “clear guidance” for when the law would permit an abortion.

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 first to ask the Medical Board to issue guidance for doctors navigating the state’s abortion laws in December, after the court shot 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.

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,” she said.

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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