Texas Medical Board under pressure to clarify exceptions to abortion ban 

The Texas Supreme Court ultimately said the woman could not have an abortion under the state’s abortion ban. But they also punted the larger question of when the exceptions apply to the Texas Medical Board. 

AUSTIN (Nexstar) — Ever since Texas banned nearly all abortions in 2021, physicians, lawmakers, and judges have pointed to the Texas Medical Board to spell out exactly what the law’s narrow medical exceptions mean for doctors in practical terms. The Board has so far said very little, creating uncertainty that some doctors say has pushed them out of Texas.

“I found myself consistently having to turn people down for the care I knew that they deserved,” said Dr. Jessica Rubino, a family medicine specialist who left Texas because of the abortion ban. “I took an oath to always do the right thing for my patients, to do no harm. I knew I was not following that oath anymore.” 

Texas’ abortion ban allows a doctor to perform an abortion if, in their “reasonable medical judgment” they believe the pregnancy “places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.” But who decides what is “reasonable,” and what defines a “serious risk?” 

Supporters of the law say the law’s language is clear.  

“Texas law makes it clear that a mother’s life and major bodily function should be protected. Any deviation… should be investigated as potential malpractice,” the abortion ban’s author, State Sen. Bryan Hughes, wrote in an August 2022 letter to the Texas Medical Board.  

Physicians have long expressed concern that the law’s exceptions are too vague. Many fear prosecution — punishable with prison time and a loss of their medical license — even if they believe they are acting within the confines of the ban.  

“If a human needs emergency medical treatment that is safe and effective and is going to save your life, there's just no excuse whatsoever to not immediately have an answer to that,” Rubino said. 

This issue reached a head in front of the Texas Supreme Court in multiple landmark cases late last year.  

In December, Kate Cox was awaiting urgent approval for an abortion her doctors said was medically necessary. Her baby was diagnosed with a deadly fetal anomaly known as trisomy-18, putting her health and future fertility at risk. But doctors told her they could not give her an abortion, concerned about what they saw as the abortion ban’s ambiguity.  

The Texas Supreme Court ultimately said she could not have an abortion under the state’s abortion ban. But they also punted the larger question of when the exceptions apply to the Texas Medical Board. 

“The courts cannot go further by entering into the medical-judgment arena,” the Court wrote in the opinion. “The Texas Medical Board, however, can do more to provide guidance in response to any confusion that currently prevails. Each of the three branches of government has a distinct role, and while the judiciary cannot compel executive branch entities to do their part, it is obvious that the legal process works more smoothly when they do.” 

The Court explained TMB could “assess various hypothetical circumstances, provide best practices, identify red lines, and the like,” pointing to times it has provided “needed guidance” in the past. 

The Texas Medical Board did not respond to multiple requests for comment. Previously, they have expressed an unwillingness to weigh in on the issue while cases are still pending in the courts. 

“We’re going to hold back on getting involved in anything until all these issues, at least at the judicial setting, are resolved,” the Texas Medical Board chair Dr. Sherif Zaafran told The Texas Tribune in December. “It wouldn’t be appropriate for us to start making any kind of movement or decisions while all that is out there still being adjudicated.” 

This week, pressure on the Board again increased when two prominent Austin lobbyists took aim at the issue.  

“Please do not continue to allow an untenable void in the policies of the State of Texas regarding the medical emergency exceptions to otherwise prohibited abortions,” Amy and Steve Bresnen wrote to the Texas Medical Board. 

The pair submitted a proposed rule for the TMB to adopt. The language lists certain medical conditions that qualify for intervention with an abortion and specifies that doctors need not wait until the patient is on the edge of death to act. 

“By providing clear rules for patients and licensees, the rule would reduce barriers to the provision of a medical service authorized by statute and increase the number of participating physicians willing to provide those critical services,” the Bresnens wrote. 

Until more clear guidelines surface, Rubino said those “barriers” are driving more physicians like her out of Texas. 

“What are they waiting for?” Rubino said.