Texas Medical Board Doesn’t Specify Abortion Ban Exceptions in Proposed Rules

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Critics call for further clarification around medical exceptions of Texas abortion ban

by
Joyce Frieden,

Washington Editor, MedPage Today

March 25, 2024

The Texas Medical Board has issued proposed rules for when emergency abortions can legally be performed under the state’s 6-week abortion ban — but it won’t specifically enumerate those exceptions.

The proposed rules come in response to a law that took effect in September 2021, which banned abortions after 6 weeks’ gestation except to save the life of the mother; there are no exceptions for rape or incest. The question that emergency physicians and other clinicians who provide abortions must now answer is, under what circumstances an abortion would meet that life-saving condition.

“The Texas Supreme Court heard a case around a particular individual, and as part of that ruling, they said that it would help for the Texas Medical Board to provide some guidance as far as the exceptions for abortions under the statute,” Sherif Zaafran, MD, president of the Texas Medical Board, said during an online interview with MedPage Today at which a press person was present.

Zaafran was referring to the case of Cox v. Texas, in which Kate Cox, a 31-year-old expectant mother of 20 weeks’ gestation, filed a suit seeking permission to have an abortion after her fetus was diagnosed with full trisomy 18. The court ruled against Cox, who ended up traveling out of state in order to terminate the pregnancy.

“At that point, we didn’t really delve into it too much,” said Zaafran. “We just kind of stayed a little bit away from the issue since a lot of it was in litigation.”

However, after the case was over, “we did get a formal petition from two lawyers” asking that we write rules on when abortion would be permissible, “and we as a medical board are required to give an answer to that petition — we have 60 days to answer that,” he said. “And that petition essentially asked us to … give some ideas as far as looking at a list of exceptions and so forth.”

The board issued its proposed rules on Friday; the rules do not give specific circumstances in which an emergency abortion would comply with the law, except for ectopic pregnancies — which are already listed as an exception in the law itself.

Pro-choice groups were not happy with the proposed rule. “While we are hopeful that the Texas Medical Board will take seriously this opportunity to help clarify the medical exception to Texas’ abortion ban, its current proposal falls short of that goal,” Molly Duane, JD, senior staff attorney at the Center for Reproductive Rights, said in a statement Friday. “The rules [that the] Texas Medical Board proposed today contain more of the same rhetoric we have been hearing for years: that physicians should just read the language of the exception and exercise their reasonable medical judgment.”

But Zaafran said there were good reasons that the board didn’t get specific in its rules. “It’s the exact same process of what you would prudently do in an emergency type of setting. That has not changed,” he said. “You as a physician, understand that there may be a case where somebody’s life is in danger, or where there may be permanent bodily injury or harm. And in all those instances … whether it involves abortion or not abortion, we always ask the same thing, which is use your medical judgment and determine if it is an emergency.”

One issue is that what constitutes an emergency requiring an abortion may be different depending on location, he continued. “What you may do in a rural area may be very different from what you may do in an urban area. And that’s why having an exhaustive list doesn’t really work. Because the circumstances and the place where it may happen may be very different.”

For example, he said, “if you’re in a rural area and the person goes into heart failure, and you don’t have the capabilities to use an ECMO [extracorporeal membrane oxygenation] machine. … They may not have that capability in a rural area. [Or] let’s say somebody came and they were severely septic. In an urban area, we may be able to, in that hospital, do a lot of interventions that you may not be able to do in a rural area. So the answer in the rural area may be yes, you need to do an abortion because that is the best we can do to save the patient’s life, but in an urban area it may be a completely different circumstance, depending on what the capabilities are.”

Another concern with the proposed rules relates to its list of documentation requirements. “The proposed rules create a new and extremely burdensome documentation system that physicians must use when providing abortions under the exception that includes documenting whether there was ‘adequate time to transfer the patient by any means available’ to a different facility to avoid having to perform an abortion,” Duane said in the statement. “This is not what medical providers and patients need.”

Zaafran said the requirements were only what would normally be necessary in such cases. “We’re not increasing the burden,” he said. “We’re re-clarifying what we expect to answer why you are determining that something is an emergency, or why something may cause permanent harm. We would do that with anything, [such as] whether it’s stating why you are taking somebody back because they have a brain bleed. And if you don’t do it immediately, then there may be permanent harm. … So all we did is reiterate what the process is.”

The board will be soliciting comments on the proposed rules for a minimum of 30 days, he said, and will decide at its June meeting whether to accept the proposed rules as they are, or to make changes and solicit more comments. The board also is planning to have a public meeting — both online and in-person — for people to express their opinions on the proposed rules. Details will be posted on the board’s website when they become available.