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Proposed abortion ban exceptions in Texas still confuse doctors

Amanda Zurawsky testifies to the Texas Medical Board about the proposed rules for medically necessary abortions.
screengrab from virtual public hearing
Amanda Zurawski testifies to the Texas Medical Board about the proposed rules for medically necessary abortions.

Chapter 170A of the Texas Health & Safety Code prohibits abortions outright, except in certain circumstances. There is an exception for situations in which the life or health of the pregnant patient is at risk. In order for the exception to apply, these factors must be met:

  • A licensed physician must perform the abortion.
  • The patient must have a life-threatening condition and be at risk of death or "substantial impairment of a major bodily function" if the abortion is not performed. ("Substantial impairment of a major bodily function" is not defined in the law.)
  • The physician must try to save the life of the fetus unless this would increase the risk of the pregnant patient's death or impairment. 

If a doctor in Texas doesn’t meet these conditions they face possible arrest, life in prison and the loss of their medical license.
Confusion about the conditions set against those harsh penalties has meant those exceptions don’t really work. That’s what Amanda Zurawski told the Texas Medical Board last month.

“I nearly died as a result of being denied basic healthcare that I needed while I was pregnant with my desperately wanted baby,” Zurawski said as she testified during a five-hour online public hearing over the Texas Medical Board’s proposed rules that could clear up confusion among doctors about how to interpret the new abortion laws.

She told the board what happened to her and how doctors feared repercussions from providing her a medically necessary abortion, and that inaction nearly took her life.

“In the summer of 2022, I received the crushing news that my husband Josh and I were going to lose our baby girl at 18 weeks. At that point, my doctor should have been able to induce labor so that I could deliver our daughter and begin healing both physically and emotionally," Zurawski said. "But with the way the law in Texas is currently written, an induction would've been considered an illegal abortion as long as the baby's heart was still beating. So I had to wait until I was in septic shock, literally on death's door, before my healthcare team could provide the care that I deserved and needed. In less than 10 minutes, I went from being physically fine to being consumed by a deadly infection that nearly killed me,” she continued.

Zurawski said her medical emergency could have been avoided and she only survived because of the eventual quick action of the medical staff. But had the proposed new rules been in place at that time, she might not have made it.

“The regulations you're proposing clarify nothing and only further complicate [a] patient's ability to access healthcare. You've effectively created a detailed checklist that doctors must meet before they can provide treatment, which in many cases might be lifesaving,” she said.

Zurawski was the lead plaintiff in a lawsuit challenging Texas's restrictive abortion laws. Late last month the Republican controlled Texas Supreme Court unanimously rejected the challenge ruling that the medical exceptions in the law were broad enough.

However, the Court called on the Texas Medical Board to issue guidance that would help physicians to understand when an abortion can be administered without breaking the law. But during the public hearing there were many complaints.

“I've reviewed the regulation and, in my professional opinion, you all, they are not workable,” said Dr. Austin Dennard, a Dallas based OB-GYN who had to leave Texas to terminate her pregnancy because of a fatal fetal anomaly. She testified the proposed documentation requirements will make her job nearly impossible.

“These proposed rules require me to consider many burdensome and, in many cases, impossible alternatives to abortion, all while leaving my patient's life at risk,” she said.

Dr. Todd Ivey, a Houston based OB-GYN who also testified last month said he hopes the Texas Medical Board was listening.

“We gave them a lot of really good, important feedback. And I think some of the things that I hope they heard were— number one—that this proposed rule change doesn't really clarify much for us,” said Ivey.

Ivey said the medical board wants to hold doctors to the standard of “reasonable medical judgment,” but what that means isn’t clear.

“Now, it should not be held to a standard of medical certainty because it can't be, providers may actually not agree on a single plan of action. It should not be limited to considering only adverse events that will happen without an action. It shouldn't require waiting until a mother is in imminent danger of death or impairment,” said Ivey.

Bee Moorhead is the executive director of Texas Impact, a religious grassroots network. She is calling on the Medical Board to give physicians the tools they need to make the best recommendations to their patients, but she points out that “They can't change the law. And the law is what creates this incredibly narrow exception.”

Any rules that the Texas Medical Board does eventually put forth could still faces challenges. The ultimate test will be, if Texas doctors get the assurances that they can do their jobs and save lives by performing medically necessary abortion without fear of being arrested.

David Martin Davies can be reached at dmdavies@tpr.org and on Twitter at @DavidMartinDavi