The Texas Medical Board proposed a broad definition for what constitutes an emergency medical exception under the state’s otherwise strict abortion ban at its meeting Friday, disappointing some abortion rights advocates who were seeking a specific list of conditions that would qualify.
The board’s proposal follows pressure from the Texas Supreme Court — in addition to doctors and patients across the state who have been calling for guidance in navigating the abortion ban as cases of Texans forced to carry to term nonviable pregnancies have emerged over the past year in the wake of the overturning of Roe v. Wade.
The board’s proposed rule defined “medical emergency” as “a life threatening condition aggravated by, caused by or arising from a pregnancy that is certified by a physician places the woman in danger of death or a serious impairment or a major bodily function unless an abortion is performed.”
Reproductive rights advocates hoped the board’s draft rule could provide a shield for doctors at risk of being sued for performing abortions. However, the board said its process would be “separate and independent” from any in a criminal trial.
“You got people that are scared, and they’re facing death,” said Steve Bresnen, one of the lobbyists who initially petitioned the board for guidance. ”We think that you can do more than it seems that your proposed rule was. In that sense, we’re disappointed.”
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The board listed several ways a doctor could document why an abortion was necessary, including using tools like “diagnostic imaging test results, medical literature, second opinions and or medical ethics committees that were used or consulted.”
The board also said they could not reference rape or incest, as they were “out of the board’s jurisdiction.” The Texas Legislature did not cite that as an exemption for a legal abortion in the law.
For at least 30 days, there will be space for public comment before the board puts a final rule into place. The board most likely will address the rule again in June at the earliest, said Dr. Sherif Zaafran, president of the Texas Medical Board. Zaafran said Attorney General Ken Paxton’s office was consulted and weighed in when making the rule.
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Many advocates hoped the rule would address three main issues: at what point in a medical emergency can a doctor perform an abortion, how can doctors ensure their medical judgments meet the standard of “reasonable medical judgment,” and what legally sufficient evidence must be present to show that an abortion was or wasn’t necessary.
The last one would have helped doctors faced with legal repercussions for performing an abortion — something the medical board can’t protect them from, said Bee Moorhead, executive director of Texas Impact, an interfaith organization that advocates on behalf of some of the state’s largest religious groups.
“It’s not sufficient to fully protect doctors,” Moorhead said. “There’s nothing the board can do to fully protect doctors because of the way jeopardy for doctors is baked into the bill.”
But Moorhead has hope because the board seems open to public comment going forward, and is “obviously making a very deliberate effort to facilitate public participation in this rule making, which is exactly what we had hoped,” she said.
See here, here, and here for some background. This is more or less what one might have expected. The TMB isn’t normally in this kind of business, they really don’t want to be involved in this business, and of course they consulted Ken Paxton (I do mean that sincerely, there’s no way they couldn’t have done that) who of course was happy with guidelines that are extremely general and non-specific, as that serves his aims. Realistically, there was no other way for this to go.
Might it make a little bit of difference for doctors? Perhaps. As this story notes, there have been a few abortions in Texas, presumably all under the “life of the mother” exception. We just haven’t heard about them, which is to say that Ken Paxton hasn’t tried to torment anyone over them, for whatever the reason. I don’t know how sustainable that is. The point is that right now, Ken Paxton and the zealot brigade don’t have to do much to make abortion exceedingly scarce in Texas. The law as written, a couple of high-profile threats by Paxton against doctors and hospitals, and the very understandable extreme reluctance by doctors and hospitals to be made an example of are doing all the work for them. The TMB’s guidance is unlikely to change any of that. The only thing that will is for these guys to start losing some elections. The Chron has more.