If the Supreme Court won’t do it, then what else is there?
Two attorneys have asked the Texas Medical Board to clarify what qualifies as a medical exception to the state’s abortion laws, following the Texas Supreme Court’s rejection last month of a Dallas woman’s attempt to terminate her nonviable pregnancy.
The petition, filed Tuesday by attorneys Steve and Amy Bresnen, who are also lobbyists, asks the board to issue “clear guidance” about when an abortion is allowed under the law. Dr. Sherif Zaafran, the board’s chair, said the agency is in the process of reviewing it. The medical board expects to respond by the end of this week, he said.
Since Texas banned nearly all abortions in summer 2021, dozens of women have come forward to say they were denied medically necessary abortions for their complicated pregnancies. These women have said they should have qualified for an abortion under the state’s narrow medical exceptions, but their doctors were too fearful or unclear on the law to perform the procedure.
“It’s time for the Medical Board to get off the sidelines. The fact that life-threatening conditions related to pregnancy are driving women out of state for abortion care is not acceptable,” Steve Bresnen said in an email to The Texas Tribune. “The Legislature, the Governor, the Supreme Court of Texas and physicians have asked for clarity and the TMB has the power to give it. There is no excuse for further delay.”
In Texas, the medical board can revoke a doctor’s license if they violate the state’s abortion laws. Texas’ Supreme Court asked the board in December to provide doctors with more guidance on interpreting those statutes after the court rejected Dallas resident Kate Cox’s request for a medical emergency abortion.
The court’s request prompted the Bresnens to also ask for clarity from the board. Their petition also calls on the board to identify steps doctors can take to ensure that their decisions are in line with the standards for a medical exception.
The petition also asks the board to prohibit complaints against doctors that are not supported by specific evidence that an abortion performed in Texas was illegal.
“The downside risks of performing (an abortion) in an uncertain world are, you can lose everything, including your freedom, for 99 years,” Steve Bresnen said. “Physicians and hospitals need the state to tell them, ‘Here’s what this exception means, and here’s how you go about making sure that you’re acting within the exception so it minimizes your legal risk.’”
See here for some background. Please note that SCOTx asked the TMB for guidance after they cravenly refused to rule on what those exceptions are themselves. And look, maybe the TMB can take a sober and objective look at the data and the science and the rulebook and the accepted practice and come up with a precise list of what to do and what not to do for our state’s doctors, but let’s be clear about two things. One is that there is no way on God’s green earth that Ken Paxton will accept what they say. He will absolutely threaten, harass, and as needed prosecute and sue any doctors who dare to provide an abortion and hospitals that allow them to take place. Even if the situation in question is as clear as it could be, he’ll claim the doctor was recklessly murdering a baby while the hospital turned a blind eye to it. This is what he does.
And two, the best case scenario for this guidance from the TMB is that it would be an affirmative defense to the murder charge that the doctor would be arrested for. Perhaps that would allow the doctor to beat the rap, but who in their right mind would want to risk that? As long as there are no constraints on Ken Paxton there will continue to be Kate Coxes and Amanda Zurawskis and so on. The TMB can’t do anything about that.
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