From KUT:
The Texas Medical Board voted Friday on a proposed rule intended to guide doctors who are navigating the emergency exception to the state’s abortion ban, answering sustained calls for clarity from abortion advocates and physicians throughout the state.
The proposed rule, posted on the TMB website, will be available for public comment for a minimum of 30 days before the board can vote to finalize it.
Abortions are illegal in Texas except when a pregnant woman’s life or a major bodily function is at risk. However, the state’s laws do not describe what conditions or circumstances qualify as life-threatening. Doctors are directed to use “reasonable medical judgment” when deciding if an emergency abortion is warranted. But they risk extensive prison time, fines and the loss of their medical license if they provide an abortion that is found to be illegal.
The TMB began the rule-making process in response to a petition by Austin-based lawyers and lobbyists Steve and Amy Bresnen. They submitted a petition in January, urging the TMB to provide physicians and Texas women specific guidance about when emergency abortions are allowed.
The request followed a Texas Supreme Court decision in Cox v. Texas, in which the court said it was not the judicial branch’s job to make determinations about individual cases when emergency abortions should be allowed — that duty lay with physicians alone. However, the court also said the TMB could do more to clear up “any confusion that currently prevails” among physicians.
In their petition to the TMB, the Bresnens suggested language for a potential rule that included a list of medical conditions that would qualify a woman for an emergency abortion, such as cancer and preeclampsia. Additionally, their proposal specified that the risk of death would not have to be imminent for a situation to be considered life-threatening.
Details of the proposed rule
However, the proposed rule published by the TMB stopped short of providing a list of conditions that might qualify under the exception. TMB President Dr. Sherif Zaafran said such a list would inherently be incomplete, and that some conditions might be life-threatening in some cases but not others.
“Medical judgment is really not whittled down to a list of conditions. You’re really looking at the totality of an issue that goes beyond a specific circumstance,” Zaafran said.
As an entity of Texas’ executive branch of government, Zaafran also said the TMB’s role is limited to elucidating the law as it is currently written — not offering an opinion on specific situations such as rape or incest, which are not currently circumstances that permit an abortion under Texas law.
“We do have some discretion as to help define what the law says and help to expand on how the process works. But we do not have discretion in rewriting the law or changing certain provisions of the law. That has to be a legislative action,” Zaafran said.
The TMB’s proposed rule largely focuses on documentation that physicians must provide to support their decision to provide a life-saving abortion.
If this rule is approved as written, doctors would be required to document what condition put the pregnant woman at risk and how that risk was determined, including any diagnostic methods and second opinions that were consulted.
Doctors would also need to document whether alternate treatments were considered that would have preserved the pregnancy and whether it was possible to transfer the patient to a physician who was able to offer a “higher level of care” that would have avoided an abortion. This provision acknowledges rural health care settings where advanced medical care may not be available.
Initial public response
In public comments following the vote, many who weighed in thanked the board for initiating the rule-making process. However, some expressed concern that the proposed rule did little to clear up doctors’ concerns about what medical judgments would be considered “reasonable” under current law.
Steve Bresnen said that more specific guidance from the TMB would give doctors confidence about their legal liability.
“You’ve got people that are scared to death —they’re facing death, and they’re scared to death. And we think that you can do more than it seems that your proposed rule would do. In that sense, we’re disappointed,” Bresnen said.
Amanda Zurawski, the lead plaintiff in a case currently before the Texas Supreme Courtthat deals with the medical exception to abortion law, also spoke directly to the board.
“I’m concerned that the rules only repeat the language that already exists from other statutes and rulings,” Zurawski said. “But in addition to repeating existing language, it sounds like it’s now potentially going to add further burdens for physicians in acting through these documentation requirements.”
The Center for Reproductive Rights, which is representing the plaintiffs in Zurawski’s case, released a statement following the meeting underlining Zaafran’s comments about the medical board’s limitations.
“The Texas Medical Board repeatedly emphasized that its own power in this arena is limited to applying the statutes that the legislature enacted,” said Molly Duane, senior staff attorney at the Center for Reproductive Rights. “That means that the forthcoming ruling from the Texas Supreme Court in Zurawski must still validate our clients’ constitutional rights to life, liberty, and equality.”
Representatives from anti-abortion groups including the Texas Alliance for Life also commented, primarily taking the stance that Texas abortion laws are already straightforward.
Dr. Ingrid Skop, a San Antonio-based OB-GYN who has served as a state’s witness in the Zurawski case, also weighed in. She said that while she personally feels the law is clear, she acknowledges that other physicians are struggling.
“I just think doctors need to know that they’re supported because they feel like they’re alone making these decisions, and that’s why we’re seeing so much confusion,” Skop said.
The general public can submit written feedback to the TMB online. Zaafran said public feedback would likely be accepted for longer than the required 30 days, with the TMB most likely discussing feedback at its next regularly scheduled meeting in June. TMB Executive Director Stephen Brint Carlton said it could take the board until October to process comments.
