In December, the Texas Supreme Court threw up its hands when asked whether the case of Kate Cox qualified for an exception under the state’s near-total abortion ban.
Cox argued in a lawsuit that her health and her ability to have children in the future were at risk if she was forced to continue her pregnancy after doctors diagnosed her fetus with full trisomy 18, a chromosomal abnormality that’s nearly always fatal.
Texas women in other urgent situations have had to either leave the state or wait until deadly infections spread or ectopic pregnancies nearly ruptured before receiving abortion care from doctors fearful of losing their licenses and going to prison under Texas’ opaque and uncompromising post-Roe abortion law.
After a lower court ruling in Cox’s favor, many hoped Texas’ highest civil court would take a stand. Instead, it didn’t grant Cox’s emergency abortion and punted on the larger questions, suggesting the Texas Medical Board could sort through it all.
“That is not our role,” medical board chair Dr. Sherif Zaafran said at the time.
He’s right that issuing guidelines on abortion is somewhat outside the day-to-day work of the board, which deals with licensing doctors and related oversight.
Then, after two lawyers petitioned the agency to weigh in, the board put the matter on its March agenda so it could hear testimony and propose guidelines. Women, desperate for some relief, went before the board.
“I heard you say you don’t make the law, but I’m here today because I tried to get the Legislature to act when I lobbied last session and couldn’t even get an amendment on fetal anomaly out of committee,” said Kaitlyn Kash at the March 22 medical board meeting in Austin. “I tried to get the courts to help us … and they said we needed to wait for you.”
In their petition, the lawyers offered language that included a list of conditions that could reasonably qualify someone for an emergency abortion. But the guidelines put out by the medical board after the March 22 meeting don’t have such a list.
Instead, they simply reiterated the definitions of certain medical conditions that are already found in different statutes: “major bodily function,” “medical emergency,” and “reasonable medical judgement,” for example — and they suggested documentation that doctors should be prepared to present to help back up their decision-making. The board made clear that even following these guidelines won’t necessarily protect doctors against prosecution that could result in a life sentence.
The public has 30 days to offer comments, but so far, many of the reactions have been negative.
“This is not going to help doctors and patients,” Molly Duane, senior attorney for the Center for Reproductive Rights, told the editorial board. Duane is also one of the lawyers representing Amanda Zurawski, Kash and nearly two dozen other plaintiffs in a case still awaiting a decision from the Texas Supreme Court. “You can’t just repeat the language of the statute, not provide a substitute for the list and then create additional burdensome requirements.”
“There are broad categories of risks to patient health that everyone can agree on,” she added.
It can be risky, of course, to establish a finite list of medical conditions that may require abortion care. It’s impossible to anticipate all scenarios, and some experts worry that an official list of conditions would undermine physician discretion and create more barriers than it would remove.
We believe it’s worth trying to make the guidelines on the table clearer, and we encourage experts to weigh in during the comment period and at an upcoming stakeholder meeting.
Ultimately, the frustration many are feeling, and that we certainly share, stems from the inherent limitations of what the medical board can do and promise. The board can’t write new laws. It can’t completely protect doctors from prosecution.
As an anesthesiologist, Zaafran won’t likely face the career- and freedom-threatening decisions that some of his peers are. But he is in labor-and-delivery rooms regularly and he understands his colleagues’ concerns.
“If there’s any message I could put to my colleagues out there, it’s that it’s your peers, it’s your colleagues, who are going to be determining what that standard of care is, what an emergency procedure is, what permanent bodily function might be,” Zaafran told us in an interview last Monday. He explained that a panel of OB-GYNs appointed by the medical board would be the ones to make decisions on whether a doctor acted within the guidelines, not the actual medical board, which is a governor-appointed mix of people, only some with medical experience and currently only one with directly relevant experience. “I hope that gives everybody a certain amount of comfort.”
Not exactly. The most dire consequences for doctors aren’t just up to a panel appointed by the medical board. They have the power to decide whether a doctor acted appropriately and should keep their medical license, but doctors can’t be sure that prosecutors and courts would respect the board’s opinion when deciding whether to pursue criminal charges.
So far, it’s been a mixed bag for Texas women who might get relief at one level, only to have it overturned at the next. Certainly, we can’t trust that elected leaders won’t try to inject politics into a doctor’s controversial decision. Republican Attorney General Ken Paxton isn’t above convicting a doctor in the court of political opinion to influence his or her fate in the court system.
We’re still waiting to hear from the Texas Supreme Court on the Zurawski case, in which the lead plaintiff had to wait until she came down with a life-threatening infection that permanently damaged one of her fallopian tubes to receive the care she needed.
“Regardless of what the Texas Medical Board does, we still need an answer,” Duane said.
We hope the courts will seriously listen to medical professionals. We urge the medical board to do the same, and be as clear as possible in their guidance. That may mean providing a list of medical conditions that can be treated with abortion, as long as the board makes it clear that it’s not an exhaustive list, nor a substitute for professional medical judgement.
In the end, though, the medical board can’t heal the harm that Texas lawmakers inflicted with their reckless legislation. The lawmakers didn’t listen when they were warned that such severe bans, even those with some limited exceptions, weren’t protective of human life and health. They must correct their grievous errors.
Houston Chronicle
