A medical group in Texas approved a set of guidelines on Friday for doctors to use when implementing the state’s strict abortion law, clarifying under what circumstances emergency abortions can be legally performed.
The Texas Medical Board unanimously passed the guidelines, relaxing some reporting and documentation requirements related to abortion, and informing doctors that they do not need to wait until the mother’s life is in danger to perform an abortion. However, the group declined to list specific exemptions to the nearly total ban on abortion in the state.
The Texas abortion law prohibits abortion in all circumstances and classifies it as a criminal offense, except when the mother’s life is threatened in a “medical emergency.” Doctors found guilty of illegal abortion could face up to 99 years in prison, a $100,000 fine, and revocation of their medical license.
The Texas Medical Board is responsible for investigating whether abortions that have been performed are legal and has the authority to revoke doctors’ medical licenses, with prosecutors able to use its findings in considering civil or criminal penalties.
Before the Board voted in March to begin developing the guidelines, advocates for abortion rights and others argued that the risks of the Texas abortion law, along with unclear legal language, prevented doctors from performing abortions when the mother’s life was in danger.
This effort followed a ruling by the Texas Supreme Court in the case of Kate Cox, who sought an abortion after doctors diagnosed her unborn child with Trisomy 18 and indicated that there was no chance of survival after birth. Cox stated that some doctors had warned her that continuing the pregnancy would endanger her health and future fertility.
The Supreme Court’s ruling indicated that the discretion and responsibility for carrying out abortions should lie with doctors, not judges, and recommended that the Texas Medical Board provide clear guidance.
In an opinion on December 11, 2023, the Supreme Court Justices wrote, “The courts can’t delve further into medical judgment.” “However, the Texas Medical Board could take further action to provide guidance in response to the widespread confusion that currently exists.”
The Medical Board released a draft of the guidelines in March, and after considering input from doctors, lawyers, and other stakeholders, the group passed guidance on June 21 that was largely consistent with the previous proposal.
The Texas Medical Board refused to adopt a specific list of exemptions to the state’s abortion ban, deeming such a list incomplete due to the unique circumstances of each patient.
However, the expert panel clarified that removing an ectopic pregnancy does not constitute an abortion, nor does removing an unborn baby that has died due to natural miscarriage.
Furthermore, the guidelines explicitly state that doctors do not need to wait until the mother’s life is facing imminent danger to perform an abortion.
The guidelines specify that a legal abortion “does not require imminent threat to life or major bodily function.”
The Board modified some controversial reporting requirements for doctors, allowing them to submit documents related to the reasons for abortion within 7 days. Doctors had previously complained that they were required to submit such documents even in cases of medical emergencies before proceeding with the procedure.
The new guidelines also removed a provision that required doctors to document attempting to transfer a patient to another physician or facility to avoid performing the procedure themselves.
The Texas Medical Board acknowledged that the passed guidelines provided clarity on the exceptions to the state’s abortion ban but also recognized that the guidelines could not address all the concerns raised by doctors regarding the abortion law.
Sherif Zaafran, Chairman of the Texas Medical Board, stated in a release, “The reality is that the Board can act only where it has authority to promulgate rules within the scope of the law.” He mentioned that the Board received requests to add or modify legal definitions, but such definitions did not exist in the statutes.
Zaafran mentioned that the Board does not have the authority to add or broaden legal definitions, which can only be achieved through legislative means.
“Nevertheless, we do believe that the rules passed do provide valuable guidance to doctors in handling any complaints related to abortion care that the institution might receive,” he said.