Texas adopts guidance for how doctors should interpret abortion ban

The Texas Medical Board on Friday adopted guidance for how doctors should interpret the state’s new abortion laws, reducing paperwork requirements some saw as overly burdensome but declining to provide a list of cases in which an abortion would be legal.

The board unanimously approved the new guidelines after making revisions in response to concerns raised by doctors, lawyers and people who say they were denied medically necessary abortions. The changes included removing a controversial provision that appeared to encourage doctors to transfer patients who might need an abortion.

Board Chair Dr. Sherif Zaafran acknowledged Friday that, even with these edits, this guidance doesn’t address all the concerns the board heard during this process.

“There are certain things that we can address and there are certain things that we ultimately don't feel that we have the authority to address,” Zaafran said.

This long-awaited guidance is just that — guidance, laying out how the Texas Medical Board will investigate allegations of illegal abortions. The medical board can take away the license of a doctor found to have performed an illegal abortion, and its findings could potentially be used by prosecutors or the attorney general’s office in determining whether to seek criminal or civil penalties.

“There is nothing that prevents a prosecutor in an individual county or an individual who wants to file a lawsuit to do so,” Zaafran said. “But my hope would be, and my strong recommendation would be, that any entities out there would defer to the actions of the medical board and its judgment when a complaint has come in as to whether something was appropriate or not.”

The final guidance

Texas law bans abortion, except when a doctor, in their “reasonable medical judgment,” believes it is necessary to save the life or protect the health of the pregnant patient. Doctors have struggled to know when they can safely intervene without risking their medical license, as well as potentially up to life in prison and a $100,000 fine.

The Texas Medical Board was initially hesitant to offer doctors guidance on how they should interpret this medical exception, even after the the Texas Supreme Court called on the board to “assess various hypothetical circumstances, provide best practices, identify red lines, and the like.”

But after health care lobbyists and lawyers Steve and Amy Bresnen filed an official petition, calling on the board to act, it took on the charge. For advocates, doctors and lawyers who’d been hoping for robust clarification of the laws, the first draft of the guidance, released in March, was largely a disappointment. It mostly listed definitions from Texas’ different abortion laws, and told doctors what they’d be expected to document if they performed an abortion.

The guidance was criticized as both overly vague and overly prescriptive. At a stakeholder meeting in May, Steve Bresnen said the board shouldn’t “be afraid to start with a blank slate.”

Instead, the board tweaked the proposed guidance and adopted it at Friday’s meeting. Zaafran said some of what the board was asked to include in the guidance was beyond their scope, including adding exceptions that allow for abortions in cases of rape and incest.

The board did add additional definitions, including language from a law that offers doctors protections if they intervene on an ectopic pregnancy or previable premature membrane rupture. Additionally, the guidance echoes the Texas Supreme Court’s ruling that a doctor need not wait until a medical emergency is imminent to perform an abortion.

“One does not need to wait until imminent harm is about to happen in order to act,” Zaafran said. “I can't emphasize that enough. In fact, even though the Supreme Court mentioned it, there was enough concern highlighted in stakeholder meetings that we felt it was appropriate for us to actually specifically include it in the rule.”

While some advocates initially hoped the board would issue a non-exclusive list of conditions that would qualify for an abortion, the board rejected that request.

“Because each patient and their presenting condition is unique, any list would be incomplete and not necessarily applicable to a given medical situation,” Zaafran said. “What if you have a situation, a condition that is not on that list? Then there's an implication, even though it may be inaccurate, that that is prohibited.”

The main thrust of the guidance lists documentation doctors are expected to produce if they perform a medically necessary abortion. At the May meeting, doctors expressed concerns about having to document these details before intervening, even during medical emergencies.

“A cesarean hysterectomy can lead to five liters of blood loss in three minutes,” said Dr. Joseph Valenti, an OB/GYN who serves on the Texas Medical Association’s Board of Trustees. “We don't want to be documenting while we're having blood loss or a baby is dropping heart tones.”

The new guidance removes some of the documentation requirements, and says doctors should create this documentation within seven days of performing an abortion. It also eliminated the provision that said doctors should document whether they tried to transfer a patient to avoid performing an abortion.

Zaafran said there was “near universal objection” to that aspect of the guidance.

Initial feedback

LuAnn Morgan, one of the non-physician members of the board, raised concerns that this guidance didn’t go far enough to ensure doctors felt safe treating patients.

“We can't take away physicians’ hesitation or reluctance or concerns or fear,” Zaafran said. “We can't take away that fear of potential prosecution. … What we can do is highlight as best we can what are the processes that we’re going to follow in addressing complaints.”

Dr. Manuel Quinones, Jr, a family physician in San Antonio who serves on the board, said the doctor-patient relationship is the “holiest of holy things.”

“This ruling is, if I interpret it correctly, is to protect that relationship, that decision that that doctor makes with that patient and that patient's family at that very moment when somebody has to make a decision,” Quinones said. “Somebody has to make that decision, and that's what we're trying to protect.

During the public comment, Steve Bresnen raised concerns about how this guidance aligns with the recent Texas Supreme Court ruling in Zurawski v. Texas, a case where 20 women allege their medical care was delayed or denied because of the state’s abortion laws.

In that ruling, the court said the legal standard to bring a case against someone who performed an abortion is that no reasonable physician would have said terminating a pregnancy was medically necessary.

Bresnen said this new guidance doesn’t take that ruling into account, and will lead to legal challenges down the road if a doctor is investigated for an improper abortion.

“Meantime, that physician and all the physicians in the state are going to have been tortured because your rule does not change the burden of proof in a case alleging a violation of the prohibition on abortion,” he said.

In concluding the meeting, Zaafran said the final rule the board approved Friday is not necessarily the final word on this issue.

“We're not perfect. That's why this is a process,” he said. “Final rules can be adjusted, revised, depending on circumstances that may come up.”

Just in: Former U.S. Rep. Liz Cheney, R-Wyoming; U.S. Sen. John Fetterman, D-Pennsylvania; and Oklahoma Gov. Kevin Stitt will take the stage at The Texas Tribune Festival, Sept. 5–7 in downtown Austin. Buy tickets today!