Abortion law emergency-exemption guidance proposed by Texas Medical Board

The Texas Medical Board, responding to pressure from the state Supreme Court and widespread uncertainty among physicians, proposed draft guidance Friday in an attempt to clarify what constitutes emergency grounds for a legal abortion.

A summary of the proposed rules were read out by board president Sherif Zaafran, who summarized the proposed rules at a regularly scheduled meeting. He said they were not intended to “regulate or prohibit abortion” but to help define legal exemptions whereby abortion is permitted to save the life or major bodily function of the mother.

“The law leaves it to physicians, not judges, both the discretion and the responsibility to exercise their reasonable medical judgment,” he said. The proposed language is now subject to at least 30 days review and public comment before it will be voted on by the board.

The board’s language largely drew from existing state legislation, and defined an emergency as “a life threatening condition aggravated by, caused by or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”

In cases where physicians deem an abortion to be medically necessary, Zaafran said, they would be expected to document how the risk of death or major impairment was determined, referring to any diagnostic imaging, tests, and second opinions that were evaluated, and alternative treatments considered. Doctors should also note whether they had time to transfer a patient to a different physician or facility with access to higher levels of care that could remove the need for an abortion.

The board would not issue a list of conditions that constitute a medical emergency, said Zaafran, because circumstances vary considerably, and the same condition could be an emergency or not depending on context. “Medical judgment is really not whittled down to a list of conditions, you’re looking at the totality of an issue,” he said. “You can’t put a list out there that defines what medical judgment may or may not be.”

The Texas Medical Board drafted the rules after the state Supreme Court expressly called for such guidance in a decision that denied an emergency abortion to Kate Cox. The Dallas patient sought a legal Texas abortion after repeatedly going to the emergency room throughout a pregnancy which, according to her legal petition, put her at high risk of severe complications including uterine rupture and hysterectomy.

In January, two abortion advocates and attorneys, Steve and Amy Bresnen, filed a petition calling on the Texas Medical Board to outline conditions that constitute medical emergency exemptions. Texas law states physicians can determine an emergency using “reasonable medical judgment” but, faced with penalties for performing an illegal abortion including loss of license, up to $100,000 in fines, and up to 99 years in prison, many Texas doctors have said they feel afraid to provide standard care in certain cases for women facing serious complications during pregnancy.

An ongoing lawsuit being considered by the state Supreme Court, Zurawski v. State of Texas, includes complaints from several women who claim they were denied abortions as emergency medical care in Texas. Amanda Zurawski, a plaintiff in the case, was one of several prominent people on both sides of the abortion debate who made brief remarks at the meeting. She went into septic shock, spent several days in intensive care, and now has a blocked fallopian tube after doctors failed to end her pregnancy after she developed preterm pre-labor rupture of membranes (PPROM), a condition that means the pregnancy is not viable and, if left untreated, leads to sepsis.

She told the board she was “hopeful” but “skeptical” the proposal would help physicians. “I’m concerned the rules only repeat the language that already exists from other statues and rulings,” she said. “It feels to me like a lot of finger pointing,” she added — the state Supreme Court has called on the board to issue guidance, while the board states it cannot override the legislature.

Her husband, Josh, agreed the logic seemed “circular,” and added, “You’re putting [physicians] in a position where we’re right back where we started. They will not want to take action because they’re afraid,” he said. “No person should have to ask themselves, ‘Can I take my dying wife to the hospital?’”

Steve Bresnen, one of the attorneys who filed the petition, also said he thought the board could do more. “We’re disappointed,” he said.

Others expressed support for the proposed wording. Kyleen Wright, president of Texans for Life who advocated for the state’s trigger ban, which went into effect after the Supreme Court’s Dobbs decision and effectively prohibited abortion, said the current law was clear and sufficient, and thanked the board for keeping guidance within limits of the law. “Doctors are unhappy and frustrated that there aren’t more exemptions in the law,” she said, suggesting that some efforts to define emergencies for legal abortion were a backdoor attempt to “expand the exemptions to the greatest extent possible.”

Sue Liebel, director of state affairs at the anti-abortion organization Susan B. Anthony List, emphasized that there was no need under Texas law for death to be imminent in order for physicians to act. “Texas courts have never found the term ‘reasonable medical judgment’ vague and confusing,” she said. “If there are doctors who are confused, the solution … is to educate them that they can use their reasonable medical judgment.”

Rebecca Weaver, legislative director for Texas Right to Life, agreed, saying the law was clear even if implementation was problematic. “Women do not need to be at death’s door before physicians act,” she added.

And yet Richard Todd Ivey, an OB-GYN and Texas officer for the American College of Obstetricians and Gynecologists, said that he recognized the concept of medical judgment, but still understood the levels of hesitation across the state given levels of scrutiny and penalties.

The earliest the board could vote on the guidance is at its next board meeting in June. Any substantive changes to the draft rules would be subject to another round of comment, meaning the process could last well past the summer.

This story is part of ongoing coverage of reproductive health care supported by a grant from the Commonwealth Fund.