The Texas Medical Association's response to proposed medical board rules regarding abortion ban exceptions represents the continuation of medicine’s advocacy for regulatory and legislative clarity regarding what constitutes a “medical emergency” exception under the state’s overlapping abortion laws in the wake of the June 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.
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 the Texas Medical Board (TMB) to provide additional guidance clarifying the exception. TMB proposed rules in April 2024, and TMA recently voiced its opposition ahead of a May 20 stakeholder meeting, saying the proposal falls short of its intended goal.
“The proposed rule, as currently drafted, dedicates much of its verbiage to repeating existing statutory language (without additional context or clarification),” TMA Immediate Past President Rick Snyder, MD, wrote in a May 4 comment letter to the state agency. “Then, the proposal adds a lengthy list of new mandatory documentation requirements that exceed the current requirements under the law.”
As a result, TMA is concerned that the proposal would do little to alleviate ongoing patient care delays and physician confusion.
“I’m fearful that it will still give many physicians, in many circumstances, pause,” Dr. Snyder told Texas Medicine Today.
More specifically, TMA urged TMB to delete certain proposed documentation requirements, which “may limit physicians’ ability to exercise reasonable medical judgment in a medical emergency situation” and “could result in a ‘checklist’ approach to care that may not be applicable or appropriate for all patients or treatment situations,” according to the letter.
In its place, TMA recommended TMB create a new provision drawing on the Texas Supreme Court’s guidance on medical emergencies and medical judgment. The guidance states, in part: “[T]he exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day. An exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion.”
In addition, TMA urged TMB to:
- Broaden the definition of ectopic pregnancy under the proposed rule to include intra-uterine ectopic conditions; and
- Reconsider the proposed inclusion of “an express requirement for physicians to comply with applicable court opinions,” which Dr. Snyder described in his written comments as “both an unreasonable and unusual burden to place on physicians,” especially “when providing care to women needing treatment in the face of life-threatening conditions.”
Beyond regulatory changes, TMA seeks legislative protections so that physicians can exercise medical judgment without fear of prosecution when a mother’s life or future fertility is at risk.
“Even though the Texas Medical Board may give this guidance, it’s not clear what the effect would be in a criminal context,” Dr. Snyder said. “It does not prevent local district attorneys from bringing charges against a physician.”
The Texas Legislature doesn’t meet again until January 2025. But when that happens, TMA has something from which to work.
During the 2023 regular session, the association worked with state lawmakers on the passage of House Bill 3058, which provides physicians with some legal defenses under Texas’ trigger law when treating ectopic pregnancy or previable premature rupture of membranes, two potentially life-threatening complications.
“We’ve already done it once,” Dr. Snyder told Texas Medicine Today earlier this year. “We need to expand upon that.”
You can find TMA’s advocacy comment letters on the association’s website.
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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.
Emma Freer
Associate Editor
(512) 370-1383