The Texas Medical Board can’t do anything about abortion

I’m sorry, but this is a complete waste of time, and everybody involved knows it.

In its ruling this week denying a Dallas woman’s petition for an emergency abortion, the Texas Supreme Court said it was the responsibility of physicians — not the courts — to interpret exceptions to the state’s abortion bans. And it suggested that the Texas Medical Board can do more to help them.

The government-appointment board can “assess various hypothetical circumstances, provide best practices, identify red lines,” the court wrote, adding that the board also can seek an opinion from Attorney General Ken Paxton.

But the medical board has so far been silent on how physicians should navigate the legal gray areas around patients like Kate Cox, the 31-year-old Dallas woman, despite requests from people on both sides of the abortion debate. And in a phone call with Hearst Newspapers, Dr. Sherif Zaafran, the president of the board, said it would be impractical to weigh in on specific situations.

“We can’t put up every single hypothetical scenario that’s out there,” Zaafran said. “At the end of the day, what you can reference is what the attorney general put out there, and that’s what we put on our website.”

Zaafran declined to say whether the board would issue guidance, citing pending litigation. Asked about existing guidance, he referred to a July 2022 advisory from Paxton after the reversal of Roe v. Wade, emphasizing that his office will pursue civil and criminal penalties against anyone who violates the state’s bans.


Given the strict penalties for abortion law violations, it’s unclear whether the board’s guidance would give physicians and hospitals enough confidence to decide what qualifies for an exception. The American College of Obstetricians and Gynecologists also says it’s dangerous for states to create lists of qualifying medical conditions — as Louisiana public health officials did last year — because it’s impossible to include every complication that can arise during pregnancy.

Some lawyers, however, say any guidance from the medical board would be helpful.

“Specific guidance would reassure physicians that they could exercise their medical judgment in these urgent cases and be backed up by state authorities,” said Elizabeth Sepper, a law professor at the University of Texas at Austin.

Sepper acknowledged the “downside” to providing specific advice. But [SMU law professor Seema] Mohapatra said the board doesn’t need to list conditions. More generalized guidance could encourage hospital legal teams to act quickly. The advice also could support legal arguments that a doctor used reasonable judgment.

“It’s not going to cover every single situation,” said Mohapatra, who specializes in health law and bioethics. “But in some of those situations, people have said that this (condition) clearly fits within the exception, yet they had care delayed or denied. If there had been hypotheticals or some kind of guidance from the medical board, then the hospital and hospital counsel could say ‘OK, go ahead.’ That would have helped.”

The state Supreme Court’s decision this week provided “limited” help in understanding the law, said Sepper. The court opinion explained that a patient’s risk of death or loss of a bodily function does not need to be “imminent.” But the court introduced more confusion, by saying that physicians have “discretion” while insisting that they use “reasonable medical judgment,” Sepper said.

That language “may allow a prosecutor to second-guess the doctor and argue that her determination of the severity of the patient’s condition wasn’t reasonable after all,” Sepper said.

Emphasis mine. We can talk legal theories and hypotheticals all we want, but the bottom line is that Ken Paxton will go full scorched earth maximal penalty on any doctor or hospital that attempts to exercise its judgment, no matter how horrifying the situation is for the woman. He will never concede that anyone’s condition is sufficiently imminent or life-threatening, he will never agree that any doctor’s judgment is sufficiently reasonable, and he will never back down or admit defeat. There’s exactly one institution in the state that could possibly slow his roll, and that’s the Supreme Court. And as I’m sure that every sitting member of SCOTx is fully aware of Paxton’s vendetta against the Court of Criminal Appeals for daring to rule against him on another matter, they’re even more incentivized to wash their hands of the whole thing.

And so here we are. The next Kate Cox can go out of state if she can afford it, or she can risk her life and health and hope to make it to the other side. And that’s how it will be until we either get a national law allowing abortion again or we elect a new government in this state that will undo the deep, scarring damage this Legislature and this Attorney General have wrought. Point a finger at the Texas Meidcal Board all you want, they didn’t create this mess and they can’t get us out of it.

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