Following the Texas Medical Board’s (TMB’s) newly adopted rules on abortion ban exceptions, the Texas Medical Association continues its advocacy for physicians performing abortions to treat a medical emergency under the state’s overlapping abortion laws.
As part of a Texas Supreme Court December 2023 ruling against a pregnant woman seeking an abortion because of a fatal fetal diagnosis, state justices called on TMB to provide additional guidance clarifying the exception.
In April, TMB issued its proposed rules. During the rulemaking process, TMA leadership voiced its concerns. TMA submitted written comments in May and June, respectively. TMA Board of Trustees Chair Joseph Valenti, MD, also testified at the stakeholder meeting on May 20 that physicians must be allowed to exercise their medical judgment to patients experiencing a medical emergency.
“We emphasized the proposed rule would do little to alleviate ongoing patient care concerns and physician confusion and the fear of potential discipline, civil liability, and criminal prosecution,” said Dr. Valenti. “Instead, the proposed rules would impose additional requirements that could delay patient care.”
For example, in one instance, the proposed rules would have required documentation of whether there was time to transfer the patient to another facility to avoid performing an abortion. TMA and other stakeholders shared concerns this – and other pre-treatment requirements – could delay initiation of care, resulting in worse clinical outcomes for pregnant patients experiencing medical emergencies. TMA respectfully opposed the rules as proposed.
After considering stakeholder comments, TMB released its newly adopted rules Friday, June 21. TMA appreciates the TMB’s efforts to promulgate rules on this challenging topic. Though the rules address some of the points made by TMA, TMA remains concerned that the rules do not provide sufficient guidance to clarify how a physician may perform a medically indicated abortion in compliance with the law.
“Since the Dobbs decision, Texas physicians treating pregnant patients experiencing a medical emergency have struggled to understand when care may be provided in compliance with Texas’ several overlapping and complicated statutes governing abortion,” said TMA President G. Ray Callas, MD.
For instance, though the Texas Supreme Court’s recent Zurawski decision emphasized physicians’ ability to use reasonable medical judgment in determining when to initiate treatment, the TMB adopted rules do not contain the court’s guidance on this issue.
The Zurawski decision details a life-threatening physical condition is not necessarily one actively injuring the patient, but one that has the potential to do so, and that a physician may address the risk that a life-threatening condition poses before a woman suffers its harm. Zurawski also addressed concerns about physicians’ medical judgment being second-guessed, stating that “reasonable medical judgment does not mean that every doctor would reach the same conclusion,” and that it is the state’s burden to prove that no reasonable physician would have concluded that the abortion met the medical emergency exception. Though recommended by TMA, TMB did not include this guidance in the adopted rules.
The adopted rules do, however, include new language providing that imminence of the threat to life or impairment of a major bodily function is not required. According to Dr. Callas, “TMA was supportive of this addition, but believes incorporating more of the Texas Supreme Court’s guidance into TMB’s rules could better help physicians and patients navigate these challenging questions.”
Additionally, some of TMA’s major concerns with the proposed rules remain in the adopted rules, such as including language regarding transferring a patient. Though no longer in the rule for required documentation, this information is now listed in the information TMB expert physicians may review when a complaint against a physician is reviewed and investigated regarding an abortion. TMA has concerns including this type of pre-treatment consideration in the rules—albeit in a different location—may still result in delays in treatment.
The adopted rules do clarify that the documentation requirements do not have to be satisfied prior to performance of the procedure. The rules provide that the documentation must be made before and/or after performing the procedure, but the initial documentation must be made within seven days of the procedure.
The TMB’s final rule does align with TMA’s recommendation to not adopt a specific list of conditions that would meet the exception, as each patient may present differently, and a patient’s treatment is based on the physician’s medical judgment. TMB President Sherif Zaafran, MD, expressed a similar sentiment, noting that “because each patient and their presenting condition is unique, any list would be incomplete and not necessarily applicable to a given medical situation.”
Dr. Callas said, “TMA still believes a legislative solution is needed. As TMA has stated previously, it's also not clear what the effect of the TMB rule will be in a criminal or civil context.”
“I would hope that prosecutors in the state of Texas would defer to us and defer to possible times when we as a medical board may feel it’s appropriate to refer to law enforcement,” Dr. Zaafran stated at the June 21 board meeting. “I think that would give everybody a sense of comfort. I can’t mandate that, all I can do is strongly recommend it, and I can reiterate again what the Supreme Court said when it comes to medical judgment: Defer to the medical board.”
“TMA will continue to advocate for legislative clarity regarding what constitutes a ‘medical emergency’ exception under the state’s overlapping abortion laws to better protect physicians and their patients when a complication arises,” added Dr. Callas.
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This article includes general information on recent developments to the legal framework governing abortions in Texas. It does not address every aspect of these developments, nor how they would interact with each other when applied to a particular situation. It also does not address the extensive legal framework of Texas laws on abortion that existed prior to the recent developments. Due to the complexity and evolving nature of the law in this area, and potential criminal, civil, and administrative liability for violating these laws, individuals should consult with their own retained counsel for legal advice relating to abortions.