Texas Medical Board drafts guidance on emergency abortion exemptions

On March 22, the Texas Medical Board issued proposed rules on emergency exceptions to the state's strict abortion ban, which critics have said do not go far enough in addressing uncertainty among physicians and patients. 

Language in the draft rules draws heavily from existing state law, which relies on physicians' discretion to determine when an emergency abortion is necessary. The proposed rules state that physicians should rely on "reasonable medical judgment" to determine what constitutes an emergency. In cases where an abortion is deemed medically necessary, the draft rules state physicians must document how the decision was made, including what the risk of death or substantial impairment was, and what diagnostic imaging, tests, research and second options were used to make the determination. 

Physicians must also document whether there was "adequate time to transfer the patient, by any means available to a facility or a physician with a higher level of care or expertise to avoid performing an abortion," the board's draft rules state. 

Outside of ectopic pregnancy, the board did not specify medical conditions that would qualify as an exception. 

"While there may be expectations from some that the board, as a state agency, should go further in clarifying the law as written by delineating specific conditions and scenarios that would qualify as exceptions, the board has a narrow lane to operate in," Sherif Zaafran, MD, president of the Texas Medical Board, said in a statement. "As physicians, we know the uniqueness of each patient is the very reason medicine is an art and our practice is not confined to a formula or list. It is indeed impossible to create any specific delineated list or catalogue of conditions that may arise in any given patient situation."

The Center for Reproductive Rights criticized the draft, saying Texas physicians — who face significant penalties, including up to 99 years in prison, for performing an illegal physician — may still be hesitant to provide appropriate care to women experiencing serious pregnancy complications. 

"The rules Texas Medical Board proposed today contain more of the same rhetoric we have been hearing for years: that physicians should just read the language of the exception and exercise their reasonable medical judgment, even when we know from Kate Cox's case that the Attorney General will continue to second guess that judgment," the group told The Dallas Morning News. 

In December, Ms. Cox sued Texas to have an emergency abortion after learning her pregnancy put her health and fertility at risk. She ended up leaving the state to have the procedure after the Texas Supreme Court denied the request. 

The Texas Medical Board will now accept public comment for 30 days. 

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