Mar 22, 2024 - Politics

Texas board proposes exceptions to abortion ban

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Illustration: Lindsey Bailey/Axios

The Texas Medical Board's proposed guidance on exceptions to the state's abortion ban does not offer doctors enough clarity, critics say.

Why it matters: The ban, which makes performing an abortion a felony, has led some hospitals to refuse to treat even patients with serious pregnancy complications — though the law makes an exception for medical emergencies.

  • Texans facing dangerous pregnancy complications have been forced to seek abortions out of the state.

Driving the news: The board's proposed guidance, unveiled Friday, defines a medical emergency as "a life-threatening physical condition" aggravated or caused by a pregnancy that "places the woman in danger of death or a serious impairment of a major bodily function unless an abortion is performed."

Details: The guidance does clarify that an abortion is allowed in the case of an ectopic pregnancy — the implantation of a fertilized egg or embryo outside of the uterus.

  • Doctors are required to document in the patient's record that the abortion was performed in response to a medical emergency and detail how the danger of death or serious risk was determined.

Zoom in: Abortion rights advocates had hoped the guidance would help protect doctors from being sued over medically necessary abortions, but the board said "possible criminal or civil action under the law is separate and independent" of any board decision.

  • Plus, the board declined to offer guidance in the case of rape or incest, saying they were "out of the board's jurisdiction," the Texas Tribune reported. Texas' abortion ban does not make exceptions for rape or incest survivors.

What they're saying: Sherif Zaafran, the board's president, said board members were hesitant to put out an exhaustive list of qualifications for a medical emergency exception because it could "cause more harm."

  • "It would hinder the ability of specific circumstances to be looked at in a way that would be fair to both parties," Zaafran added.

The other side: Austin attorneys Steve and Amy Bresnen, who made the initial request in January for the board to take up the rule-making process, both testified Friday.

  • "You've got people that are scared to death," Steve Bresnen said. "We think that you can do more than it seems that your proposed rule would do. In that sense, we're disappointed."

Between the lines: The board's proposed rules come after pressure from the Texas Supreme Court, which issued a December opinion in the case of Dallas resident Kate Cox and said the board should offer more guidance for medical exceptions under the law.

  • The court denied Cox's request for a medical exception to the abortion ban, and she left the state to get the procedure.
  • Cox's pregnancy was affected by a chromosomal condition called trisomy 18, which is almost always fatal to the fetus before or shortly after birth.
  • The board's proposed guidance does not clarify whether an abortion is medically necessary when the pregnancy is affected by trisomy 18.
  • Austin Kaplan, an attorney for Cox, said during Friday's public testimony the rules do little "to change the dangerous situation for Texas women and their families."

Of note: Nearly two dozen women, including Austin resident Amanda Zurawski, have joined a separate legal challenge against the abortion ban, which could affect how the law applies to medically complicated pregnancies. The court has until June to issue a ruling.

What's next: The Texas Medical Board's public comment period lasts for at least 30 days. Then, the board will hold a public hearing and may adopt the rule or make changes.

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