For the first time since Texas criminalized abortion, the state’s medical regulator is instructing doctors on when they can legally terminate a pregnancy to protect the life of the patient — guidance physicians have long sought as women died and doctors feared imprisonment for intervening.
The new training from the Texas Medical Board comes nearly five years after the state passed its strict abortion ban in 2021, threatening doctors with severe penalties. ProPublica’s reporting has shown that pregnancy became far more dangerous in the state after the law took effect: Sepsis rates spiked for women suffering a pregnancy loss, as did emergency room visits in which miscarrying patients needed a blood transfusion; at least four women in the state died after they didn’t receive timely reproductive care. More than a hundred OB-GYNs said the state’s abortion ban was to blame.
In response, the Texas Legislature passed the Life of the Mother Act last year. The law updated the abortion ban’s medical exceptions, added to the legal burden needed for prosecutors to criminally charge a doctor and required the medical board to create guidance for doctors by Jan. 1, something no other state with an abortion ban has done.
The new medical training, which ProPublica obtained under a public records request, assures doctors they can now legally provide abortions, even when a patient’s life isn’t imminently in danger, and goes over nine example scenarios, including a patient’s water breaking before term and complications from an incomplete abortion.
Some of the scenarios make clear how doctors can intervene in circumstances similar to cases ProPublica has investigated. For example, in 2021, Josseli Barnica was diagnosed with an “inevitable” miscarriage, leaving her at high risk of dangerous infection, and she died after doctors would not empty her uterus while there was still a fetal heartbeat. The new training includes an example that indicates an abortion would be legal in similar cases.
But medical and legal experts who reviewed the training for ProPublica said the case studies represent only the most straightforward situations doctors encounter. The complications that women face in pregnancy are varied, complex and impossible to capture in a brief presentation, many cautioned. One attorney called the training “the bare minimum.”
“I could probably list 100 different situations that would cause people to pause and say, ‘Wow, does that fit into the law?’” said Dr. Tony Ogburn, an OB-GYN practicing in Texas. “They’re taking years and years of medical training and experience on how to manage these cases and summarizing it in 43 slides.”
Notably absent from the training is guidance on how doctors should care for patients with chronic conditions, a gray area that has come up again and again in ProPublica’s reporting. Last year, ProPublica investigated the death of Tierra Walker, a San Antonio woman with diabetes and high blood pressure who endured repeated hospitalizations and escalating symptoms before she died. Doctors dismissed her requests for an abortion to protect her health, her family said. Doctors and hospitals involved in Walker’s care did not respond to ProPublica’s requests for comment.
And no amount of training can solve what many doctors see as the main problem: the law’s steep criminal penalties. If found guilty of performing an illegal abortion, doctors face up to 99 years in prison, $100,000 in fines and the loss of their medical license. Even the possibility of a lengthy and public court battle can be a powerful deterrent, many physicians told ProPublica.
The Texas Medical Board writes in its training that “the legal risk of prosecution is extremely low” if doctors practice “evidence-based medicine,” follow “standard emergency protocols” and document cases appropriately. The training also emphasizes multiple times that the burden now falls on the state to prove that “no reasonable doctor” would have performed the abortion. Before the Life of the Mother Act, prosecutors could accuse a physician of performing an illegal abortion with little evidence.
That assurance rings hollow to some doctors, who point to the actions of Texas Attorney General Ken Paxton since the state’s abortion ban took effect.
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Multiple doctors told ProPublica decisions about abortion care are also shaped by hospital lawyers. The Life of the Mother Act required the State Bar of Texas to create its own training for attorneys, which ProPublica reviewed. That presentation also explains that prosecutors looking to file a criminal charge now need to demonstrate that no other doctor would provide an abortion if faced with the same scenario.
Blake Rocap, a longtime reproductive rights attorney, said the state guidance should give doctors and hospitals more protections to help patients access care. “It will save lives,” he said.
See here for some background. I have a ton of respect for Blake Rocap, who has forgotten far more than I’ll ever know on this subject, but I can’t say I share his optimism. I hope he’s right, but I’ll need to see real data that shows it first.
The problem here remains the combination of the law’s vagueness, even with the new laws that provide some clarifications, along with its harshness. In the absence of sworn and videotaped testimony from Ken Paxton and all of the crazy people running in the Republican primary to replace him that they will not swoop in to persecute doctors and hospitals and everybody else associated with an abortion under these specific and understandable circumstances, you should not have any faith that you are covered. And this is not a bug but a feature, because the forced birth crowd doesn’t give a shit about the women or the doctors. They’ll trade a whole lot more death and suffering by pregnant people in return for no hospital, clinic, or medical practice ever performing an abortion again under any circumstance. They don’t believe in “life of the mother” exceptions, anyway. No PowerPoint slide pack can compensate for that.
Texas’ anti-abortion laws have to be repealed, the Dobbs decision has to be overturned either by another Supreme Court or by federal law, and all the tools for harassment that the zealots have need to be taken away. We’ve seen what it’s like in this alternate reality. It only gets worse otherwise.