Texas Medical Board adopts new guidance for physicians who perform emergency abortions

Texas' medical misconduct watchdog on Friday unanimously adopted regulatory guidance on abortions, making limited changes to a proposal that Texas OB-GYNs, medical associations and others said would create further hurdles for doctors and for patients in need of emergency care amid the state's near-total ban on the procedure.

The Texas Medical Board's initial proposal would have required doctors to document whether they had time to transfer a patient to a higher care facility, a requirement that OB-GYNs said could lead physicians to further delay lifesaving care. The March draft proposal would also have mandated doctors to list alternative treatments they used in trying to avoid performing an abortion.

Friday's adopted rules nix formal requirements that doctors always include such documentation, but they still specify that "expert independent physicians" may consider transfer and alternative treatment efforts when investigating complaints. They also state that a patient need not face "imminent" death before she can qualify for an emergency abortion, a provision many members of the public supported.

Texas law prohibits abortions except when a pregnant patient has a "life-threatening condition," the state Supreme Court has affirmed in several recent decisions. Physicians who are found to have violated Texas' abortion ban face severe punishment, including up to 99 years in prison, fines of no less than $100,000 and loss of their medical licenses.

The state medical board — a group of 11 physicians and five public members appointed by Gov. Greg Abbott — first proposed new abortion ban rules in March, responding to increasing calls, including from the Texas Supreme Court, for clarification of the ban's medical exceptions.

Friday's decision, however, highlights the limited power the executive branch has to fulfill that objective.

"It was probably never reasonable to think that a state agency was going to resolve or provide complete clarity on such a complicated issue," board member Dr. Justin Tibbels said during the meeting.

More: What is the Texas Medical Board?

What the finalized guidance says

The new guidance, which will go into effect 20 days after it is published in the Texas Register, reiterates Texas abortion laws and states that doctors must document how they decided a pregnant patient would have died or faced serious health consequences without an abortion.

That definition is broader than the one outlined in House Bill 1280, the state's abortion "trigger ban," which went into effect in 2022 after the U.S. Supreme Court reversed federal protections for abortions. As the state Supreme Court has noted, the construction of that law only allows abortions in cases in which a pregnant patient has a "life-threatening condition that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced."

The medical board's guidance allows a doctor up to seven days after performing an emergency abortion to document why the procedure was medically necessary, a response to concerns voiced by members of the public.

More: 'Confused and frightened': Texas Medical Board guidance on abortion ban exceptions unveiled

The rules also lay out how the board will investigate complaints filed against physicians suspected of having performed illegal abortions. In addition to looking at whether a doctor tried to transfer or alternatively treat a patient to save a baby, reviewers may consider what literature, medical tests and "medical ethics committees" a doctor used or consulted in reaching an abortion care decision.

Notably, the rules emphasize that imminent death is not required for a patient to qualify for emergency care.

The medical board only has the power to grant or revoke medical licenses, Board Chair Dr. Sherif Zaafran stressed, and does not have direct control over how criminal and civil penalties for the abortion ban are enforced.

However, Zaafran said, "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 does come in."

Board member Manuel Quiñones, a family physician from San Antonio, said the rules cannot entirely resolve doctors' concerns about potential penalties. However, they can protect a doctor who uses sound medical judgment and keeps records of their actions, he said.

"There's no way that anything that we do is going to alleviate the apprehension ... and the fear or the reservations that physicians have," Quiñones said at the public meeting Friday. "But one of the things that we can do is hold sacred that physician-patient relationship and hold that the way a physician interacts with that patient is always protected as long as his reasoning is valid and well-documented."

Texans react to the new regulatory changes: 'Unconscionable'

Democrats and reproductive rights groups criticized the medical board, state lawmakers and Republicans soon after the board adopted the new guidelines. Two Texas lawmakers who authored major abortion ban legislation, Rep. Giovanni Capriglione, R-Southlake, and Sen. Bryan Hughes, R-Mineola, did not immediately respond to American-Statesman requests for comment.

U.S. Rep. Colin Allred, D-Dallas, took the opportunity to slam U.S. Senate opponent Ted Cruz, the Republican incumbent, for calling Texas' abortion ban "perfectly reasonable."

“It is unconscionable for a woman’s critical health care decisions to be made by judges, politicians and an appointed board when they should be between a woman and her doctor,” Allred said in a news release. “When I’m in the Senate, I’ll fight to restore the standards set by Roe v. Wade and return the right to make these difficult decisions to Texas women and their doctors.”

Cruz's office did not respond to the Statesman's request for comment on the adopted rules.

Married Capitol lobbyists Amy and Steve Bresnen, whose petition to the board set the rulemaking process into motion, were disappointed with Friday's decision. Steve Bresnen said the new rule "does little at best."

"They're proving what many women, many doctors, and, frankly, many activists have always known regarding this issue, and that is that (abortion ban exceptions), in practice, don't work," Amy Bresnen said in a phone interview Friday.

Joe Pojman, director of Texas Alliance for Life, said the anti-abortion advocacy group believes the new rules "will help to educate physicians about Texas' abortion laws" and its "life-saving exceptions." He also noted that no doctor has been publicly prosecuted by a district attorney, sanctioned by the medical board, or sued by Texas Attorney General Ken Paxton under the new laws.

The outcome of the TMB rulemaking process suggests those seeking further protections for doctors and patients must look to the Legislature, said the head of Texas Impact, a progressive interfaith advocacy group.

"TMB is trying to solve a puzzle that has pieces missing, and no amount of rearranging can inject the missing content," Texas Impact Director Bee Moorhead said in a news release Friday.

Richard Todd Ivey, an OB-GYN from Houston, told the Statesman he was also hoping for legislative change.

"I would hope that (the Texas Medical Board) could help the Legislature understand the position that they put practicing OB-GYNs into," said Ivey, who is a district chair of the American College of Obstetricians and Gynecologists, in an interview Thursday. "And that they understand that women will continue to suffer at the hands of the Legislature unless some of this has changed."

This article originally appeared on Austin American-Statesman: Texas Medical Board adopts new abortion care guidance, rules