Texas Medical Board’s abortion guidance is a mess

I have three things to say about this.

Doctors who perform life-saving abortions may soon be required to document whether they first tried to transfer the patient to another facility to avoid terminating the pregnancy, a move some say goes beyond the language of the law.

Health lawyers and doctors worry this proposed requirement further disincentivizes doctors from performing medically necessary, but legally risky, abortions.

“This creates even more uncertainty for doctors who were already concerned,” said Rachael Gearing, a Dallas health care lawyer who represents OB/GYN clinics. “It’s basically saying, ‘Well, you should have passed your patient off to someone else who would have held out longer and wouldn’t have done the abortion.’”

Texas’ laws allow abortions to save a patient’s life, but doctors have struggled to apply that exception in practice, especially when faced with up to life in prison, fines and the loss of their medical license.

After pressure from the Texas Supreme Court and an official petition, the Texas Medical Board issued guidance in March laying out how the licensing agency would investigate complaints of prohibited abortions. The agency is currently considering public comment and will finalize the proposal at or after its June meeting.

In addition to requiring doctors to document how they diagnosed the patient as needing an abortion, the board’s proposal requires them to note whether there was “adequate time to transfer the patient, by any means available to a facility or physician with a higher level of care or expertise to avoid performing an abortion.”

Texas Medical Board President Dr. Sherif Zaafran said this was no different than what doctors are typically expected to do when a patient requires a higher level of care. He said the agency was not trying to “second guess” doctors, but rather laying out what they might expect to see in documentation if they are called on to investigate a complaint.

“All we’re asking for is, you’ve made a determination, you’ve made a diagnosis, you’ve prescribed a treatment plan,” he told The Texas Tribune. “Help us understand what led you to come up with that diagnosis.”

But doctors — and the lawyers who represent them — say the law’s crushing penalties mean treating complicated pregnancies is vastly different than any other type of medical treatment in Texas.

“How can a physician feel protected enough to provide good medical care when the ultimate decision is going to be made by the court, and they may not support the physician?” said Dr. Todd Ivey, a Houston OB/GYN and officer with the Texas chapter of the American College of Obstetricians and Gynecologists. “And then suddenly, you’re subject to criminal and civil liabilities?”


The medical board is taking public comment on the proposed guidance and is considering holding stakeholder meetings to hear directly from impacted parties. At the board’s next meeting in June, it will either introduce changes to the proposal or adopt the guidelines as they exist.

Ivey, the Houston OB/GYN, said he appreciates the tough spot the board is in trying to address this extremely fraught issue, but he is disappointed they didn’t do more to address doctors’ fears of being criminalized.

“We need some way we could allow physicians to practice good medicine without worrying about being criminally prosecuted or having some huge civil action against them,” he said. “We want to practice good medicine and take care of people within the confines of the law. We need the law to help us, not hinder us.”

Gearing said she was hoping for more of the “red lines” recommended by the Texas Supreme Court, like saying doctors that got two concurring opinions from fellow physicians could safely proceed.

Zaafran acknowledged the frustration with what the board has put out so far, saying they were being asked to give a “black and white answer” that doesn’t exist.

“The law is black and white — you cannot perform an abortion unless there is potential for major bodily injury or permanent organ damage, or death,” Zaafran said. “The part that is not black and white is determining what is a threat to somebody’s life, or a threat of permanent bodily organ damage or injury … That’s where the judgment is.”

See here for the most recent update, and be sure to read the rest of the story, there’s a lot more discussion of the guidelines including a reminder that this is all happening as SCOTUS could be preparing to make a hash of EMTALA. My three things:

1. The wording on the Texas anti-abortion law is deliberately vague, and the reason for that is that in conjunction with the harsh penalties it’s going to ensure that its boundaries are never tested. No doctor in their right mind wants to risk being arrested and threatened with 99 years in jail and the loss of their license, and that’s even before we consider the extremely risk-averse hospitals’ considerations. This is why Amanda Zurawski and Kate Cox and the others sued to get clearer guidance from the courts, and why it was so cowardly of the Supreme Court to wash its hands of the matter while suggesting that the TMB step in. The doctors need to know what the law says, in detail and with examples. The Lege and SCOTx have refused to give them that. What is clear is the reason why.

2. In any other context we would trust the doctor to use their best judgment to properly apply the correct standard of care that takes into account the interests and well-being of the patient. Abortion bans like what we have in Texas forbids them from doing that, thus leading to the mishmash of vagueness and threats noted above. In any context, a doctor’s judgment can be questioned by another doctor – this is why second opinions are often valuable – but in no other context is the downside risk of having one’s judgement questioned so massive.

3. And that again is why this whole exercise of asking the TMB to write this guidance is, well, misguided. They can’t interpret the law, and even if they tried it wouldn’t matter anyway, because the ultimate arbiter as I’ve said all along is Ken Paxton. I guarantee you, he will always be able to find a doctor who will question the judgment of anyone who decides that an abortion is the right course of action. Who would ever want to risk that?

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