The smallest possible loosening of abortion restrictions

Better than nothing, but not by much.

Rep. Ann Johnson

Doctors will have more legal protections to perform emergency abortions under a bill signed by Gov. Greg Abbott, following numerous reports of medical care being delayed due to confusion over the state’s abortion ban.

The law, signed last week, is a quiet victory for Democrats after a legislative session in which Republicans were largely unwilling to revisit the new abortion restrictions, which don’t include exceptions for rape or incest and have only vague language about when doctors can intervene during emergencies.

Saturday marks the one-year anniversary of the Dobbs Supreme Court ruling that overturned the landmark Roe v. Wade decision.

The two conditions covered by House Bill 3058 — ectopic pregnancies and previable premature rupture of membranes (PPROM) — can be life-threatening if left untreated. The standard of care includes either close monitoring to wait for the issue to resolve on its own or terminating the pregnancy.

An ectopic pregnancy, in which the egg implants outside the uterus, is already exempt from the state ban, according to an advisory from the Texas Attorney General’s Office. The diagnosis is fatal for a fetus. Meanwhile, chances of fetal survival are slim when a patient experiences PPROM, when their water breaks before the pregnancy reaches viability.

The legislation is “allowing us to practice medicine without handcuffs on in those particular situations,” said Dr. Kimberly Pilkinton, president of the Texas Association of Obstetricians and Gynecologists.

In media interviews, physician reports and legal filings since the overturning of Roe v. Wade, patients with those conditions have said they were denied treatment or sent home to wait for their health to worsen, with doctors citing the sole exemption in the state’s new abortion ban for patients experiencing a medical emergency. Physicians who violate the law can face fines, a lawsuit or a felony punishable by up to life in prison. They can also have their license revoked by the medical board.

The new law, effective Sept. 1, will protect any health care provider from criminal, civil and professional liability if they can prove they used reasonable medical judgment. Pharmacists are also protected.

State Rep. Ann Johnson, a Houston Democrat and the bill’s author, acknowledged that the bill doesn’t cover all of the potentially life-threatening complications that can arise during pregnancy. However, she said she needed to compromise with Republican colleagues to earn necessary bipartisan support for an issue that “politically, I don’t think there was an appetite” to resolve.

“I think there’s a much larger discussion about long-term implications and necessary fixes,” she said. “But it was really important that we take a small step here in protecting women’s health care.”


Not all abortion rights advocates were satisfied by the legislation. Molly Duane, a senior staff attorney for the Center for Reproductive Rights, which represents 15 plaintiffs in a lawsuit seeking clarity to the state’s abortion laws, said the bill is “wholly insufficient to address the widespread suffering happening across Texas, as evidenced by the women in our lawsuit.”

While some plaintiffs in the lawsuit did experience PPROM, others dealt with different pregnancy complications including fatal fetal anomalies that they say forced them to leave the state for care.

Duane also noted that doctors could still be forced to go to court.

“Under this bill, doctors who provide an abortion will still have to defend themselves in court to prove the abortion was necessary,” she said in the statement. “Imagine doing that in a state whose government has been zealously hostile towards abortion providers. Doctors can still be hauled into court where they face cripplingly high fines, life in prison, and loss of their medical license.”

Here’s HB3058, which passed 128-12 though two of the Nos said they meant to vote Yes and one of the Yeses said he meant to vote No. As Molly Duane notes, the bill’s text adds an “affirmative defense to civil liability”, which just means that if a doctor is sued under the vigilante bounty-hunter law, they can try to avoid being found guilty by citing one of these conditions. Of course, there’s no limit to how many times they can be sued under SB8, and the judge would still have to rule in their favor, so the depth of this protection can be measured in angstroms. Still technically greater than zero, but you can see why no one is particularly excited about it. This is not meant in any way as a knock on Rep. Johnson, who did the best she could under extremely hostile conditions. It’s just to say that no credit is due for any kind of “moderating” or “softening” on the Republicans’ part.

For further reading, this Trib story is a look at where we are with abortion in the state of Texas a year after the Dobbs ruling. I may or may not comment on it later, I’m just putting it out there for you.

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