Abortion Advocates Criticize Proposed Texas Medical Board Guidance

Doctors performing life-saving abortions in Texas may soon need to record if they attempted to transfer the patient to another facility before resorting to terminating a dangerous pregnancy. Some argue that this requirement exceeds the legal scope of the state’s abortion ban and could discourage doctors from performing legal and necessary abortions.

“This creates even more uncertainty for doctors who were already concerned,” Rachael Gearing, a Dallas-based lawyer who represents OB/GYN clinics, told the Texas Tribune. “It’s basically saying, ‘Well, you should have passed your patient off to someone else who would have held out longer and wouldn’t have done the abortion.’”

Texas’s abortion ban not only criminalizes abortion but also opens medical professionals to criminal and civil liabilities. While the ban includes narrow exceptions to save the life of a pregnant patient or prevent “substantial impairment of major bodily function,” doctors have been hesitant to provide care due to the fear of facing imprisonment, fines, and the revocation of their medical licenses by the Texas Medical Board.

In a 2022 letter to the Texas Medical Board, the Texas Medical Association (TMA), a professional nonprofit representing over 55,000 medical professionals in the state, demanded state regulators clarify when performing abortions would be legal. TMA expressed concern that many hospitals, fearing repercussions from the state’s abortion ban, had either refused pregnant patients or postponed care.

“Delayed or prevented care in this scenario creates a substantial risk for the patient’s future reproductive ability and poses serious risk to the patient’s immediate physical wellbeing,” the letter said.

For example, since Texas implemented a near-total ban on abortions in the summer of 2022, dozens of women have shared their experiences of being unable to access medically necessary abortions. For instance, Amanda Zurawski, the main plaintiff in a lawsuit challenging Texas’ abortion bans, had to delay terminating her pregnancy until she developed sepsis. Only then were her doctors willing to proceed. She endured three days in the intensive care unit and is now unable to have future children because of the infection.

“What I needed was an abortion, a standard medical procedure,” Zurawski said at a press conference. “An abortion would have prevented the unnecessary harm and suffering that I endured. Not only the psychological trauma that came with three days of waiting, but the physical harm my body suffered, the extent of which is still being determined.”

Notably, in December 2023, Kate Cox, a pregnant woman requiring an emergency abortion, petitioned the court to temporarily halt the state’s abortion ban. Cox sought immediate medical intervention to mitigate potentially life-threatening risks associated with continuing her pregnancy. Her fetus had been diagnosed with Trisomy 18, a condition marked by severe structural abnormalities and no survivability. While a district court judge initially granted a temporary restraining order permitting Cox to access abortion services in the state, the Texas Supreme Court later overturned this decision. Ultimately, Cox was forced to leave the state to access an abortion.

After the Supreme Court refused Cox’s petition to access an emergency abortion in Texas, two attorneys approached the Texas Medical Board seeking clarification on what constitutes a medical exemption under the state’s abortion laws.

“The downside risks of performing (an abortion) in an uncertain world are, you can lose everything, including your freedom, for 99 years,” said Steve Bresnen, one of the lawyers who filed the petition for board guidance. “Physicians and hospitals need the state to tell them, ‘Here’s what this exception means, and here’s how you go about making sure that you’re acting within the exception so it minimizes your legal risk.’”

In March, the Texas Medical Board issued a guidance outlining its process for investigating complaints related to prohibited abortions. The board’s proposed rule defines a “medical emergency” as “a life threatening condition aggravated by, caused by or arising from a pregnancy that is certified by a physician places the woman in danger of death or a serious impairment or a major bodily function unless an abortion is performed.” However, the rule was criticized for not including a list of specific exceptions to the abortion ban.

The rule also requires doctors to document “whether there was 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.” The Bresnens emphasized in a statement to the Texas Tribune that requiring doctors to document whether there was time to transfer a patient to another facility could lead to delayed care and detrimentally impact pregnant patients.

“Nothing in Texas law requires a female whose pregnancy threatens her life or major bodily functions to be transferred,” the Bresnens told the Texas Tribune. “At any time she meets those criteria, a physician is authorized to perform an abortion and it’s up to her to decide whether the risks of delay outweigh any other consideration.”

Transferring and airlifting patients out of state to access emergency abortions has been under increased scrutiny after the Supreme Court oral arguments this week in Idaho v. United States. Since Idaho’s extreme abortion ban went into effect, the state’s largest hospital system has noted a significant surge in pregnant people requiring flights out of Idaho to access abortion services. Since January, at least six patients have had to be airlifted to neighboring states for emergency abortion care. “If we annualize that, we can anticipate up to 20 patients needing out of state care this year alone,” said Dr. Jim Souza, chief physician at St. Luke’s Health System.

Transporting patients to neighboring states not only unnecessarily drains hospital resources but also poses significant risks to the patients’ well-being. “Putting somebody in a whirlybird and flying them to another state creates an obvious delay in care,” Souza said. “If she is in transit and begins hemorrhaging very quickly, the resources you have are no longer the resources of a tertiary care center. They’re the resources of a helicopter.”

The Texas Medical Board is currently reviewing public feedback and intends to finalize the proposal either during or following its June meeting.