When Kate Cox sued the state of Texas for the right to get an abortion under the emergency medical exception to the state’s abortion law in December, her case felt all too familiar to Dr. Leah Tatum.
An OB-GYN practicing in Austin, Tatum had seen her share of patients like Cox: women for whom the joy of a wanted pregnancy slid into grief when their fetus received a fatal diagnosis. But Tatum couldn’t give those patients the option of terminating their pregnancies — it just wasn’t clear to her if it was legal under the narrow emergency exception to Texas’ near-total abortion ban.
“The law is written in such an ambiguous way that there are always going to be cases where you're apprehensive about providing that care, because nobody wants to end up in criminal court,” Tatum said.
In Texas, abortion is illegal except when a pregnant woman has a “life-threatening physical condition” that carries “danger of death” or risks impairing a major bodily function. The law does not specify what conditions qualify as life-threatening; doctors are expected to use their “reasonable medical judgment.” If doctors are found to err in their judgment, the stakes are high: They risk up to 99 years in prison, $100,000 in fines and the loss of their medical licenses.
Now, a pair of Austin lawyers are petitioning the Texas Medical Board, a state agency that regulates medical practice in Texas, to step in and provide clarity to doctors like Tatum — and to clear up ambiguity that has frustrated reproductive health advocates throughout the state.
Judicial efforts
In 2023, two major cases sought to establish clarity around the exception to Texas’ abortion laws. In Zurawski v. Texas, a group of patients argued the exception’s ambiguous language caused them to be denied abortions when their health was at risk. The Texas Supreme Court is still deliberating whether to allow a temporary injunction that would permit physicians to use their “good faith judgment” when considering an emergency abortion.
During hearings in Zurawski, attorneys for Texas Attorney General Ken Paxton’s Office argued that some of the plaintiffs lacked standing to challenge the abortion exception because they were not currently pregnant or able to become pregnant.
Cox’s lawyers at the Center for Reproductive Rights put this argument to the test by directly petitioning the state for an abortion. An initial decision from a Travis County district judge to grant a temporary injunction allowing Cox and her doctor to proceed with an abortion was quickly halted when Paxton’s office asked the Texas Supreme Court to overturn the lower court decision.
"The law leaves to physicians—not judges—both the discretion and the responsibility to exercise their reasonable medical judgment, given the unique facts and circumstances of each patient," the Supreme Court said in its opinion officially vacating the lower court decision Dec. 11.
Tatum said this feedback from the Supreme Court left her no closer to understanding her legal rights.
“It felt like what they did was they kind of punted it back,” she said.
Petition to the Texas Medical Board
Although the Texas Supreme Court pinned responsibility to doctors, it also said the Texas Medical Board could offer more specific guidance “in response to any confusion that currently prevails.” Still, in December, Dr. Sherif Zaafran, president of the Texas Medical Board, told the Texas Tribune that the TMB was unlikely to offer guidance on the matter until current judicial challenges related to abortion had been resolved.
But on Jan. 16, two lawyers made an attempt to spur the TMB to action. Referencing the Supreme Court’s comments in its Cox opinion, Austin lobbyist duo Steve and Amy Bresnen filed a petition asking the TMB to initiate a rulemaking process that will offer clear guidance to doctors navigating emergency abortions.
“I have personally never seen a Texas Supreme Court opinion give that many breadcrumbs to the executive branch of government,” Amy Bresnen told KUT News.
"Pregnant Texas females are at zero right now, and physicians are at zero with respect to these exceptions. We want to do better than zero, and that's why we're doing what we're doing."Steve Bresnen, lawyer and lobbyist
The Bresnens also submitted a proposed rule that included a list of specific conditions that would allow for abortion, including cancer, stroke and preeclampsia. It also specified that death or impairment would not need to be imminent for an abortion to be performed.
On Friday, the TMB confirmed it would review the Bresnens’ petition. According to the Texas Administrative Procedure Act, the board now must respond to the petition within 60 days, either by initiating a rulemaking proceeding or by denying the request and including reasoning for the denial.
“We urged them if they did decline to be specific enough that the Legislature could understand what was keeping them from [issuing guidance],” Steve Bresnen said.
If the TMB does begin a rulemaking process, it would need to publish a proposed rule in the Texas Register and invite public comment for a period of 30 days before adopting a final rule. The Bresnens said they hope the board will also convene a group of interested parties to weigh in on the rulemaking process, including doctors and hospital representatives.
“We're just trying to make a competent discussion of this subject matter happen and some progress be made,” Steve Bresnen said. “Pregnant Texas females are at zero right now, and physicians are at zero with respect to these exceptions. We want to do better than zero, and that's why we're doing what we're doing.”
Limitations
Some doctors say that guidance from the Texas Medical Board would be welcome, but still insufficient to make them feel legally secure.
The Texas Medical Association, a group that advocates for physician interests, lobbied during the most recent Texas legislative session for a bill that carved out permission for abortion in the case of an ectopic pregnancy — when an embryo implants outside the uterus — or another condition called previable premature rupture of membranes, which is when someone’s water breaks far too soon.
Dr. Rick Snyder, a Dallas-based cardiologist who serves as president of the Texas Medical Association, said the organization will continue to pursue this approach in future legislative sessions, adding to the list of conditions that are explicitly protected.
“While [TMB guidance] might be a good start, even if they came out with that guidance today, we would still pursue legislative improvement to the code,” Snyder told KUT News in December.
Tatum said she thinks TMB guidance would be a good step — but also that it is sure to be an incomplete solution, as would any list of conditions enshrined in law.
“I think that that would be better than where we're at right now. But you're never going to come up with an all-inclusive list is the problem,” she said.
