The Texas Medical Board unanimously approved a final rule that will guide doctors navigating the emergency medical exception to state abortion law.
Abortions are only legal in Texas in order to preserve a pregnant person’s life or a major bodily function.
Specifications for what qualifies as a “life-threatening” circumstance are not spelled out in the law; physicians are told to use their “reasonable medical judgment” when deciding whether to offer the procedure. But doctors face steep penalties if they are found to offer an abortion illegally, including fines, prison time and the loss of their medical licenses.
Physicians and reproductive rights activists have sought clarity through various avenues, including high-profile lawsuits that have wound their way through Texas courts. In its Cox v. Texas opinion, the Texas Supreme Court indicated that TMB could take steps to clear up "any confusion that currently prevails” regarding the exception.
The board published an initial proposal in March that focused on documentation doctors should provide to support their decision-making when offering abortions, such as what conditions put the pregnant person at risk and diagnostic methods that informed the decision.
The final rule adopted on Friday maintained these provisions, with some adjustments in response to concerns expressed by physicians.
What adjustments were included in the final rule
The adjusted rule specifies that doctors have up to seven days to formally document their decision-making process. It also removes a controversial requirement for doctors to document whether it was possible to transfer patients to a facility where a “higher level of care” was available.
“There was near universal objection to the provision on whether there was adequate time to transfer a patient in that this would cause a delay in care and create the impression that transfer is always required,” said Dr. Sherif Zaafran, president of TMB.
If TMB receives a formal complaint and must investigate an abortion, “independent expert physicians” may review whether there was time to transfer a patient, however, along with details documented by the performing physician.
Adjustments were also made to specify that abortions are allowed in order to remove an ectopic pregnancy, as is already defined in state law, and to clarify that the emergency does not have to be imminent in order for a legal abortion to occur.
But the board declined to make some changes that had been proposed by public commenters, such as a list of conditions that would make an abortion permissible, which Zaafran said would be inherently incomplete.
Zaafran also stressed that as a part of Texas’ executive branch, TMB does not have the authority to expand the exception to include rape or incest — such a change would have to arise from legislative action.
“What we've done here is we've outlined within the law itself and within the rules that are already in existence, what we feel and what we believe that standard of care is,” Zaafran said.
The board is limited in what the rule can do
Before voting, certain board members expressed concern that some physicians might still feel hesitation in emergency situations.
“Is this still going to make a physician feel uncomfortable in treating the patient, or cause hospitals to turn patients away?” asked LuAnn Morgan, a board member from Midland.
Zaafran, in response, said that TMB could not control “the comfort for physicians to act in an individual situation.” He also emphasized that just as doctors could be sanctioned for providing inappropriate care, TMB could also sanction them for failing to offer necessary care in an emergency.
Board members also seemed to acknowledge the limitations of the board to provide confidence to physicians navigating an inherently subjective statute.
“It was probably never reasonable to think that a state agency was going to resolve or provide complete clarity on such a complicated issue,” said Dr. Jason Tibbels of Bridgeport.
Following the vote, the board heard public comment from Steve Bresnen, who along with his wife Amy Bresnen filed the original petition that spurred TMB to begin a rule-making process.
Bresnen said he was concerned that the approved rule did not reflect language from the Texas Supreme Court's recent opinion in Zurawski v. Texas saying that "the burden is the State’s to prove that no reasonable physician would have concluded that the mother had a life-threatening physical condition that placed her at risk of death or of substantial impairment of a major bodily function unless the abortion was performed."
Bresnen said that the approved rule would therefore open up TMB to legal challenges and put an unnecessary burden on physicians.
"This is not a garden variety standard of care case," Bresnen said. "The Supreme Court has set the standard."
The Texas Medical Board must now submit the final rule for publication in the Texas Register, where it must be posted for 20 days before it can officially take effect.
