The stakes are high for doctors in Texas when it comes to abortion.
With three overlapping laws, Texas bans nearly all abortions and has some of the strictest penalties for doctors in the country, including thousands of dollars in fines, the loss of a medical license and even life in prison.
That’s the backdrop for a process happening now to give doctors more clarity about when abortions can be performed and considered in compliance with the narrow medical exception in Texas abortion law.
The state’s Supreme Court asked – and an official petition required – the Texas Medical Board to clarify how doctors should interpret the exception, which says abortion is allowed to save a woman’s life or “major bodily function.”
The board has drafted those clarifying rules but at a public meeting on Monday, the board heard repeatedly that they’d missed the mark.
The rules say doctors need to document in significant detail efforts that were made to save the pregnancy. And it says, if time allows, they should transfer patients “by any means available” to hospitals with a higher level of expertise to try to save a fetus. If there isn’t enough time for a transfer, doctors have to document that.
Texas Medical Board President Dr. Sherif Zaafran, an anesthesiologist based in Houston, presided over the online meeting along with the board’s executive director Brint Carlton.
It lasted more than four hours. The Texas Medical Association, representing 57,000 physicians, residents and medical students, the Texas Hospital Association, representing 460 hospitals, and the American College of Obstetricians and Gynecologists all told the board its rules are still not clear enough.
In some respects, the proposed rules “may do more harm than good,” said Steve Wohleb of the Texas Hospital Association.
The two dozen commenters also included Texas doctors, lawyers, representatives from organizations that oppose abortion rights, and patients, including Kate Cox.
Cox is a Texas woman who was in the middle of a serious pregnancy complication when she appealed to the Texas Supreme Court to try to get an abortion. She was denied the procedure and traveled to another state to end her pregnancy. The case, however, did lead the court to pressure the Texas Medical Board to come up with guidance.
Cox said the state of Texas didn’t help her when she needed an abortion in December 2023. “I'm afraid the rules this board is now proposing wouldn't have helped me either,” she told the panel.
Many people commented that the rules failed to reassure physicians that they can provide an abortion without having to wait for a patient to get sicker and sicker.
Elizabeth Weller, who first told her story to NPR in 2022, had that experience. Her water broke too early for her pregnancy to survive, but she had to wait until she showed signs of infection before she was given an abortion. She concluded her remarks with this:
“I hope that you can all go to sleep at night and that you never have any blood on your hands for the women that are going to have to suffer through this. I hope that your rules are clear. I hope no one has to die because of this.”
Both Cox and Weller are plaintiffs in a lawsuit against the state that seeks to clarify the medical exception. Four other plaintiffs in that case, Dr. Austin Dennard, Lauren Miller, Amanda Zurawski, Dr. Judy Levison, and lead attorney Molly Duane of the Center for Reproductive Rights, also commented on the rules. The Texas Supreme Court is expected to issue its decision by the end of June. Two patients who are not involved with the case commented as well about their experiences with delayed care during serious pregnancy complications.
The message from anti-abortion groups was strikingly similar – they also wanted the rules to say more clearly that doctors need not wait for a woman’s condition to become life-threatening before they act. Texas Right to Life’s Miranda Willborg said the board should clarify “the fact that imminence” of death is not required.
“Women do not need to be at death's door for a physician to take action,” Willborg said, although she added that, overall, her group was pleased with the proposed rules.
Board President Zaafran pushed back on the idea that, under the proposed rules, doctors would have to delay care as long as possible. “I don't think that there's any information that you have to wait until the patient became septic and potentially at death's door before you would need to act or intervene,” he said. “If there's something that we said in the proposed rules that intimate that, then we're happy to take suggestions along those lines, but that's certainly nothing that we intended.”
Steve Bresnen, an attorney and lobbyist in Austin, replied, “It's what was not said, doctor.”
Bresnen, along with his wife and business partner Amy Bresnen, filed the petition that forced the Texas Medical Board to write the rules.
He said the board needs to say in writing that a patient doesn’t need to be imminently in danger of harm to be able to receive an abortion legally.
“If you fail to do that, you're not achieving anything,” Bresnen said. He also encouraged the board to scrap their proposed rules and try again. “Don’t be afraid to start with a blank slate.”
For now, nothing changes with the Texas abortion ban. If the board decides to start over, the process could take months.
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