The new rule now serves as a standard for the board's disciplinary review of any abortion care complaints.
The decision came almost two years after 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 June update came after months of feedback from Texans, many of whom testified that the proposal wasn't clear enough for physicians or their patients to decide when exceptions to the law could be made.
What you need to know
The board initially proposed guidance about abortion exceptions in March, following months of pressure from patients, doctors and lawmakers. The proposal relied heavily on existing state statute and did not list specific conditions that warrant an emergency abortion.
In both that proposal and the adopted rule, a medical emergency was defined 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."
If carrying out an abortion, the new rule requires physicians to document the need for the procedure by noting:
- That the patient faced a medical emergency putting them in danger of dying, or serious risk of "substantial impairment" of their major bodily functions
- Which bodily functions were at risk
- What led the patient to be at risk of dying or impairment
- How the determination of risk was made
“What is black-and-white are the exceptions. What is grey is the medical judgment, and that’s why we’re sitting here," Zaafran said June 21.
A closer look
In May, some physicians said the proposed rule would do little to alleviate the “fear and misunderstanding” surrounding the abortion law.
Board members in June said there will likely be some hesitation or worry by caregivers facing possible abortion procedures, but that their intent was to allow doctors to decide on the right treatment options within the bounds of the law.
“There’s no way that anything that we do is going to ... avoid the apprehension and the fear or the reservations that physicians have. But one of the things that we can do is hold sacred that physician-patient relationship," said board member Dr. Manuel “Manny” Quinones, Jr. "How that physician interacts with that patient is always protected as long as his reasoning is valid and well-documented. That’s what the ruling is for."
Zaafran said he believes it'd be a "no-brainer" under the rule for a doctor to carry out an abortion if a women's life is clearly at risk. And to the reverse, he noted that a physician declining to provide medically-necessary abortion care in an emergency could warrant sanctions.
Zaafran also called the rule a work in progress that could be revised in the future depending on changing circumstances and how any potential complaints are handled.
Quote of note
“We can’t take away physicians’ hesitation or reluctance or concerns or fear. We can’t take away that fear of potential prosecution. ... What we can do is highlight as best we can, what are the processes that we're going to follow in addressing complaints that come through; what are the specific areas in the statute that we are going to ask everybody to follow; what are the circumstances that we feel are appropriate—again, the two very specific exceptions which includes concerns about death or concerns about permanent injury or harm," Zaafran said.
Also of note
The medical board's vote came weeks after the Texas Supreme Court unanimously upheld the state abortion law on May 31, ruling against 20 women who said they were denied abortions despite experiencing severe pregnancy complications. The plaintiffs had argued the law was too broad for doctors to intervene in emergency situations.
Steve Bresnen, an attorney and lobbyist who's pushed the board for clearer guidance this year, said he believes the outcome of that case coupled with the approved medical rule could result in faulty complaints that waste doctors' resources and limit willingness to treat women in emergency situations.
“You’ve just created legislative history for something that’s not right. This is not a garden variety standard of care case," Bresnen told board members. "It’s unfortunate this statutory language resembles a negligence charge. But that’s not the standard, and the Supreme Court has set the standard.”
