Texas medical board proposes guidance for exceptions to abortion bans

The Texas Medical Board released guidance on what qualifies for an exception to the state's multiple abortion bans, weighing in on how physicians can provide care in medical emergencies.

While the board voted to publish the guidance publicly, they will vote on adopting the guidance in the future. The guidance was released publicly, with the board asking physicians, patients and the public to weigh in with comments on whether it addresses physicians' confusion.

Texas, which has multiple abortion bans in place, is one of 14 states that have ceased nearly all abortion services since the U.S. Supreme Court overturned Roe v. Wade, ending federal protections for abortion rights.

Despite being called on to elaborate on the wording of the bans, the Medical Board said it is not their jurisdiction to determine what the law should be, but they sought to elaborate on how physicians should provide care.

"I just want to remind everybody that we cannot make law. We can help clarify existing law," Dr. Sherif Zaafran, president of the Texas Medical Board, said during a public meeting Friday.

Physicians should determine what care is medically necessary based on their "reasonable medical judgment," Zaafran said.

The board's guidance includes telling physicians to document their decision-making and the circumstances of a patient's illness in their medical record in cases of medical emergencies that pose the danger of death or risk of substantial impairment of a major bodily function, according to the rules.

The record-keeping of the physician's thought process and medical decisions is what would determine whether the physician's actions met the standard of care or not, Zaafran said.

The rules also said physicians should determine whether there is "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."

However, the board said it would not release a list of medical conditions that would qualify for the exceptions, despite singling out ectopic pregnancies.

"If you put a list out there, that may be a list that is accurate in one setting but inaccurate in another setting," Zaafran said.

The new rules proposed exclusions for procedures to remove ectopic pregnancy, the remains of a dead fetus, or procedures meant to save the life of the unborn fetus, saying they are not all abortions. The treatment for an ectopic pregnancy is an abortion.

After a portion of the rules was read during the board meeting on Friday, the floor was opened up to members of the public wishing to comment on it. Three women suing Texas over its abortion bans, who say the bans put their lives in danger, shared their stories with the medical board, and their disappointment that the guidance did not cover cases of fatal fetal anomalies.

Taylor Edwards told the board that her physician's medical judgment was for her to get an abortion but she was not allowed to receive one

"I had to flee the state," Edwards said. "That shouldn't be what's happening in Texas."

"I am currently pregnant today because I got an abortion," Edwards said.

Kaitlyn Kash, whose fetus had skeletal dysplasia, was told her baby was unlikely to survive until birth or would suffocate soon after being born, but she could not get an abortion in Texas.

"I probably would have taken my own life to end my child's pain," Kash said.

"I've tried to get the courts to help to explain what would happen in my situation as a plaintiff in the Zurowski [v. State of Texas] case. And they said that we needed to wait for you, and now you're saying it's not your responsibility either. So where else am I supposed to go?" Kash said.

The lead plaintiff in the lawsuit, Amanda Zurawski, told the board the guidance is very confusing and she is concerned it would add further burdens on physicians -- with documentation requirements -- and potentially delay care.

"On the one hand, we have the Supreme Court telling us that this decision is up to you, and the clarity should be something that you provide. However, today it sounds like you're saying the opposite and that it's not within your jurisdiction, and that the Supreme Court should actually be the ones to make these decisions," Zurawski said.

Stephen Brint Carlton, Texas Board executive director, responded that the documentation should not delay care and can be done retroactively.

"I don't believe it's contemplated by the board that someone is in an immediate medical emergency and the physician needs to stop saving the patient and treating them to go and document a bunch of stuff. This can come after saving the patient's life," Carlton said.

An attorney working with the Center for Reproductive Rights in their legal challenges against the state of Texas over its abortion bans told the board he fears the new rule does little to change the current state of things and does not protect lifesaving care for pregnant mothers.

The Center for Reproductive Rights released a statement criticizing the proposed rules, saying they "fall short of clarifying abortion exceptions."

"The rules Texas Medical Board proposed today contain more of the same rhetoric we have been hearing for years: that physicians should just read the language of the exception and exercise their reasonable medical judgment, even when we know from Kate Cox's case that the Attorney General will continue to second guess that judgment," Molly Duane, the CRR's lead attorney, said in a statement.

"The proposed rules also create a new and extremely burdensome documentation system that physicians must use when providing abortions under the exception that includes documenting whether there was 'adequate time to transfer the patient' 'by any means available' to a different facility to avoid having to perform an abortion. This is not what medical providers and patients need," Duane said.