The board has been silent on the issue since Texas’ “trigger law” took effect in August 2022, banning nearly all abortions except to save a pregnant person’s life or prevent serious injury. The law does not include exceptions for rape or incest.
The board opted to consider new guidance following calls for clarity from patients, doctors and lawmakers. Nearly two dozen women sued the state in the past year after they were forced to carry nonviable pregnancies under the abortion law.
What happened
The board relied heavily on existing state statutes to craft its proposed rule. It did not list exceptions for specific medical conditions, instead deferring to physicians to determine when an emergency abortion is necessary.
The rule defines a medical emergency as "a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed."
Board president Dr. Sherif Zaafran said the board has the ability to “enforce the law as it’s written,” but the law can only be altered “through the legislative process.” The Texas Legislature is not scheduled to meet until January 2025.
“We do have some discretion as to help define what the law says or help to expand on how the process works,” Zaafran said. “But we do not have discretion in rewriting the law or changing certain provisions of the law.”
Reproductive rights advocates said they hoped the board would provide clearer guidance to help doctors provide the best medical care for their patients.
“You've got people that are scared to death. They're facing death, and they're scared to death,” Austin attorney and lobbyist Steve Bresnen said. “We think that you can do more than it seems that your proposed rule would do. In that sense, we're disappointed."
Bresnen and his wife, Amy, petitioned the board to expand its guidance in January.
Several women who sued Texas over limited exceptions to the abortion ban also spoke in front of the board after it released the proposed rule.
“An abortion saved my life,” said plaintiff Kaitlyn Kash, whose fetus received a fatal diagnosis.
“The mental anguish of carrying that pregnancy to term would have killed me,” Kash continued. “I probably would have taken my own life to end my child's pain.”
Amanda Zurawski said she “probably would have died” if doctors had waited any longer to perform an abortion in 2022. Zurawski experienced a condition called preterm premature rupture of membranes, which caused her water to break too early and led to a severe infection.
"No person should have to ask themselves, 'Can I take my dying wife to the hospital?'" Zurawski’s husband, Josh, said.
The background
Calls for clarity have increased in recent months. In December, the state Supreme Court declined to allow Dallas resident Kate Cox to receive an abortion in Texas after her fetus was diagnosed with trisomy 18, a typically fatal condition. Physicians told Cox carrying the pregnancy to term could threaten her health and fertility.
In its ruling, the court said the Texas Medical Board should “do more to provide guidance” amid confusion over the state’s limited abortion exceptions.
The law states a pregnancy can be terminated if the patient has “a life-threatening physical condition” or faces “a serious risk of substantial impairment of a major bodily function.” Physicians who violate the abortion ban would face strict criminal penalties, including life in prison, at least $100,000 in fines and the revocation of their medical license.
Additionally, 20 Texas women sued the state last March after they were denied abortions despite experiencing severe pregnancy complications. The case, Zurawski v. Texas, is currently pending before the Texas Supreme Court.
Questions remain
“I have yet to hear something in these rules that sounds like it will address what happened to me and my family,” Kash told the board. “I’ve 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 for fetal anomaly out of committee.”
Kash said when she took her story to court, they told her to wait for guidance from the Texas Medical Board.
“And now you're saying it's not your responsibility either. So where else am I supposed to go?” Kash asked.
Dr. Ingrid Skop, a San Antonio OB-GYN, said the proposed rule is a “very good start, but there are a few other things that we need to be emphasizing.”
“Doctors are frightened,” Skop said. “They feel that they are making decisions in a vacuum and that if they make the wrong decision, they could lose their medical license, they could go to jail and they could incur severe financial penalties.”
Skop previously testified in court in favor of the state abortion ban. She works for the Charlotte Lozier Institute, an anti-abortion research organization.
“[Physicians] know what conditions can cause a risk to a woman's life,” Skop said. “But we need to be reassured that we can intervene at the time the diagnosis is made, we do not need to be waiting until a woman is dying.”
In its December ruling, the Texas Supreme Court said doctors should use their professional judgment when dealing with life-threatening conditions.
“The exception does not hold a doctor to medical certainty ... nor does it ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible,” the court wrote.
Houston OB-GYN Richard Todd Ivey, who spoke on behalf of the American College of Obstetricians and Gynecologists, said confusion over Texas’ abortion law has led to “delays in the provision of appropriate care with increased morbidity [and] unnecessary suffering.”
“These decisions should be left to the patient and their trusted health care professional,” Ivey said. “Doctors and clinicians must be able to provide unbiased factual information to patients regarding reproductive health care options, and people must be able to use their own judgment when making their healthcare decisions.”
Stay tuned
The board will accept public comment on the proposed rule for at least 30 days. Texans can submit written comments here.
Officials said they would also hold at least one “stakeholder meeting” for people to provide feedback on the proposal and ask questions of the board. A date for that meeting has not been announced.
At the earliest, the board will likely discuss the proposed rule again in June, Zaafran said.
"The Board does not have authority to regulate or prohibit abortion," Zaafran said in a statement following the meeting. "The Board is confident that its existing processes and procedures are appropriate and adequate to handle any complaints in this area of medicine."
