Texas Medical Board Clarifies Exceptions in State’s Abortion Law

Members of the Texas Medical Board listen to public comments during a meeting to discuss guidance around medical exceptions to the state's abortion laws in Austin, Texas, on March 22, 2024. (Jay Janner/Austin American-Statesman via AP, File)

A Texas medical panel on Friday approved a set of guidelines for doctors to use in navigating the state’s strict abortion laws, providing clarification around the circumstances when an emergency abortion can be performed legally.

The Texas Medical Board unanimously adopted the guidelines, loosening some abortion-related reporting and documentation rules for physicians and telling doctors they don’t need to wait until a pregnant woman’s death is imminent to carry out an abortion. However, the panel declined to list specific exemptions to the state’s near-total abortion ban.

Texas abortion laws prohibit and criminalize abortions in all cases except when the mother’s life is in danger under a “medical emergency” exception. Doctors found guilty of providing an illegal abortion face up to 99 years in prison, a $100,000 fine, and loss of their medical license.

The Texas Medical Board, which is tasked with investigating the legality of performed abortions, has the authority to take away a physician’s medical license and its findings can be used by prosecutors when considering civil or penalties.

The board voted in March to begin the process of formulating the guidelines after pro-abortion rights groups and others argued that the legal risks combined with the laws’ unclear language deterred doctors from performing abortions even in cases where the mother’s life is in danger.

That effort followed a Texas Supreme Court ruling against Kate Cox, who sought the right to abort her baby after doctors diagnosed it with Trisomy 18 and gave it no chance of survival after birth, with Ms. Cox saying some doctors told her that continuing to carry the pregnancy to term risked her health and future fertility.

The Texas Supreme Court decision indicated that the law places the discretion and responsibility of carrying out abortions on physicians, not judges, while suggesting that the Texas Medical Board provide clarification.

“The courts cannot go further by entering into the medical-judgment arena,” justices for the high court wrote in their Dec. 11, 2023 opinion. “The Texas Medical Board, however, can do more to provide guidance in response to any confusion that currently prevails.”

The medical board released a proposal for the guidelines in March and after considering input from doctors, lawyers, and other interested parties, the panel adopted guidance on June 21 that was largely in line with the earlier proposal.

What Do the Guidelines Say?

The Texas Medical Board declined to adopt a list of specific exemptions to the state’s abortion ban, arguing that such a list would be incomplete because the circumstances of each patient are unique.

The panel did, however, clarify that removing an ectopic pregnancy does not qualify as an abortion, nor is the removal of a dead, unborn child whose death was caused by a spontaneous abortion.

Further, the guidelines clarify that doctors need not wait until a mother’s life is in imminent danger to carry out an abortion.

“Imminence of the threat of life or impairment of a major bodily function is not required” for the legal performance of an abortion, the guidelines state.

The board modified some controversial reporting requirements for doctors, allowing them seven days to submit documentation about why they performed an abortion. Doctors had previously complained that they were required to submit such documentation before carrying out the procedure, even during medical emergencies.

The new guidelines also removed a provision that required doctors to document if they tried to transfer a patient to another doctor or facility to avoid performing the procedure themselves.

The Texas Medical Board acknowledged that the adopted guidelines provide clarification to rules regarding exceptions to the state’s abortion ban while acknowledging that the guidance could not address every issue doctors had with the legislation.

“The reality is that the Board can only act where it has the authority to provide rules within the confines of the law,” Texas Medical Board president, Dr. Sherif Zaafran, said in a statement, in which he said that the board received requests to add or modify various definitions that don’t exist in legal statutes.

Dr. Zaafran said the board lacks the authority to add or expand statutory definitions, which can only be done on a legislative track.

“However, we do feel that the adopted rules provide physicians with valuable guidance on how they can successfully navigate any complaints the agency may receive related to abortion care they may provide,” he said.