By Marin Wolf
The Dallas Morning News bulletin news online news
(The Dallas Morning News) — Doctors do not need to wait until a pregnant person’s death is imminent to provide an abortion, the Texas Medical Board emphasized Friday in newly passed guidance on how physicians should practice under the state’s strict abortion bans.
The adopted rules did not substantially change from those proposed and discussed as part of the official rule-making process over the last three months. Doctors, patients and lawyers who participated in a stakeholder meeting last month largely found the suggested guidance lacking.
Board members acknowledged during their meeting Friday that the adopted rules could not address every qualm doctors have with Texas’ abortion legislation. The board cannot alter the laws, but only provide clarity on how they should be implemented in a hospital or doctor’s office.
The guidance does not include a list of conditions that qualify for medical exemptions under the three overlapping abortion laws that forbid the procedure in all cases except to save the life of the mother. Board members said such a list would be incomplete because each patient circumstance is unique.
“What is black and white are the exceptions. What is gray is the medical judgment,” said board chair Dr. Sherif Zaafran. “If it was easy, the Supreme Court would not have to grapple with it.”
There were some small changes between the proposed guidance and the rules passed by the board on Friday.
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The board originally included provisions on how a doctor should whether there was “adequate time to transfer a patient” to another hospital to avoid an abortion. After doctors said the additional requirements would burden medical staff during emergency cases, the board altered the guidance to say such documentation may be one of the few factors reviewed if a complaint is filed against a physician.
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Doctors also asked that the definition of an ectopic pregnancy — one of the only medical exceptions named in the rules — be expanded. Originally, the rules had the definition as a pregnancy occurring outside of the uterus.
During the May stakeholder meeting, Dr. Karin Fox, a professor of maternal fetal medicine at the University of Texas Medical Branch in Galveston, described two types of ectopic pregnancies — one occurring in the scar of a previous cesarean section and one occurring in the muscle of the uterus — that she said could be hard to navigate under the current guidance language.
In the final language, the board removed the definition of the condition.
Bee Morehead, executive director of the interfaith advocacy organization Texas Impact, said the board is stuck between a rock and a hard place because of the limit of the group’s scope.
“They can’t rewrite the law,” Morehead said. “They just can’t.”
More than 20 Texas women turned to the courts for additional clarity on when their doctors could act in medical emergencies in Zurawski v. Texas. The State Supreme Court ruled against those women in late May, saying a lower court’s injunction in the case “departed from the law as written without constitutional justification.”
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In the case of Kate Cox, a North Texas woman who petitioned the court for the right to get an abortion for her medically complicated pregnancy, the state’s highest court similarly did not side with the patient. Instead, the court said the Texas Medical Board had the authority to issue guidance on how physicians should operate under the bans.
“I think the Supreme Court, for lack of a better term, created the hot potato. They didn’t want to do this, so they threw it to the state medical board and the state medical board really doesn’t have the authority to change the law, ” said Dr. Todd Ivey, a Houston OB-GYN. “I think what this says to me, as a practicing physician, is now the onus is on the legislature and the legislature really needs to step up and address this.”
Steve Bresnan, one of two Austin attorneys and lobbyists who filed a petition asking the board to issue guidance, said during public comment that the rules don’t consider the Zurawski decision. The case set the legal standard for bringing an abortion case against a doctor as a situation in which no reasonable physician would have decided abortion care was medically called for.
“What you’ve just done is create a legislative history that says you’re going to treat these cases just like your average garden variety standard of care case,” Bresnan said. “That is not the burden in a garden variety standard of care case.”
Consequences for physicians under the state’s bans are severe, including massive fines, jail time and loss of licenses. Many doctors say they live in fear of becoming involved with a case aimed at testing the limits of the laws.
Zaafran said multiple times during the meeting Friday that he urges prosecutors to confer with the board when considering abortion ban cases.
Board staff will file the rules with the Texas Register. Twenty days after the order is placed, the rules will go into effect.
Zaafran emphasized that rules are easier to change than laws and that there’s potential that the rules could be adjusted in the future.
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