A Texas medical panel on Friday rebuffed calls to list specific exceptions to one of the most restrictive abortion bans in the U.S., which physicians say is dangerously unclear and has forced women with serious pregnancy complications to leave the state.
The head of the Texas Medical Board also said that wider issues surrounding the law — such as the lack of exceptions in cases of rape or incest — were beyond the authority of the 16-member panel, 12 of whom are men. Only one member of the board is an obstetrician and gynecologist.
“We can only do so much,” said Dr. Sherif Zaafran, the board's president.
The proposed rule used definitions already in state statutes, language for which Zaafran said they consulted with the Attorney General's office.
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The public meeting dealt new discouragement and anger to opponents who have urged courts and Texas lawmakers for nearly two years to clarify exceptions to the state's ban. In December, Kate Cox, a mother of two from Dallas, sued the state for the right to obtain an abortion after her fetus developed a fatal condition and she made multiple trips to an emergency room.
Cox wound up leaving the state for an abortion before the Texas Supreme Court, whose nine justices are all elected Republicans, ruled that she had not shown her life was in danger. The court, however, called on the state medical board to offer more guidance.
At the same time, Texas Attorney General Ken Paxton threatened legal action against any medical staff involved in Cox's abortion case.
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The Zurawskis pointed to Cox's case in their comments to the medical board on Friday, saying it's the reason why members need to be more specific than relying on the state's language that doctors use their own "reasonable medical judgment."
“There’s a person they know who is not reasonable who will, and has already shown in the Kate Cox case, will challenge doctors who are making reasonable medical decisions," said Josh Zurawski. “You’re putting them now in a position where we’re right back where we started; they will not want to take action because they’re afraid. So, the circular logic that’s happening here is exactly what put us here in the first place, [and] is going to keep us here."
Josh's wife, Amanda, is one of nearly two dozen women suing the State of Texas, and the medical board, seeking clarification of the abortion laws.
“On the one hand, we have the Supreme Court telling us that this decision is up to you, and the clarity should be something that you provide. However, today, it sounds like you’re saying the opposite, and that it’s not within your jurisdiction and that the Supreme Court should actually be the ones to make these decisions," she told the Texas Medical Board on Friday.
Zaafran said that while the board has some discretion as far as helping to define what the law says they don’t have discretion in rewriting it, which would be up to the Legislature. He and other members of the board were appointed by Republican Gov. Greg Abbott, who signed the ban in 2021.
The board's proposed guidelines on exceptions to Texas' ban on abortion from the moment of fertilization, issued Friday, advise doctors to meticulously document their decision-making when determining if continuing a woman's pregnancy would threaten her life or impair a major bodily function, but otherwise provide few specifics.
Documentation would include "what diagnostic imaging, test results, medical literature, second opinions, and/or medical ethics committees that were used or consulted, and... what alternative treatments were attempted and failed or were ruled out," Zaafran read.
Zaafran explained the reasoning behind the documentation requirement, saying, “The Cox case specifically really centered around a documentation issue."
It would also require doctors to answer questions like if there was enough time to transfer their patient to another "facility or physician with a higher level of care or expertise to avoid performing an abortion."
While anti-abortion advocates praised language leaving the question of whether or not to perform an abortion at a reliance on doctors' “reasonable medical judgment,” some doctors, attorneys and women who have left the state for abortions said more needed to be done to shield doctors from prosecution for performing abortions under the medical exceptions.
“You’ve got people who are scared to death," said Steve Bresnen.
Bresnen and his wife Amy Bresnen are attornies who petitioned the board for guidance.
“They are facing death and they are scared to death and we think you can do more than it seems that your proposed rule would do. In that sense, we’re disappointed," he said. “Even though you don’t feel like you can do something about criminal exposure, that’s not right."
He and the Zurawskis said they plan to submit written comments and suggestions to amend the rule language, and hope the board will consider changes.
“This case, it's very clear that the current status of the law is not functioning for the flesh and blood people who are pregnant and need help, and the people that are willing to save their lives if it won’t send them to prison for 99 years," said Bresnen.
A doctor convicted of providing an illegal abortion in Texas can face up to 99 years in prison, a $100,000 fine and lose their medical license.
Zaafran said the board decided against listing specific medical conditions that might apply because there would be too much nuance depending on each case.
“You can have two conditions but two very different circumstances, including where it may have happened. Was it an area where you could not transfer the mother to an area of higher level of care?” he said. Advancements in medicine also could change the effect of certain conditions, he added.
Zaafran encouraged people to submit written suggestions on language they think the board should be using.
Rebecca Weaver, the legislative director at Texas Right to Life, the state’s largest anti-abortion group, expressed satisfaction that the guidelines aren't “weakening the strength of our laws,” and that the board chose “not to list out circumstances but defer to reasonable medical judgment.”
“Texas’ pro-life laws clearly permit physicians to intervene when a pregnant woman’s life or major bodily function is in jeopardy because of her pregnancy,” she said.
A period now opens for the public to comment on the board's proposed guidelines, which can be submitted here.
You can read the full language of the proposed rule here.
Zaafran said staff will review comments and present them to the board at their next meeting in June. From there, members can decide to adopt the new rule, or change it and put it back up for public comment.
After the U.S. Supreme Court ended abortion rights in June 2022, vaguely worded bans in some Republican-controlled states have confused how exceptions should be applied.
