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The Texas Medical Board on Friday adopted guidelines for how doctors should interpret the state’s new abortion laws, reducing paperwork requirements that some saw as overly burdensome but declining to provide a list of cases in which an abortion would be legal.
The board unanimously approved the new guidelines after making revisions in response to concerns raised by doctors, advocates and people who say they were denied medically necessary abortions. The changes included removing a controversial provision that appeared to encourage doctors to transfer patients who might need an abortion.
Chairman of the Board Dr. Sheriff Zaafran acknowledged Friday that, even with these modifications, this guidance does not address all of the concerns the board heard during the process.
“There are some things that we can address and there are some things that we ultimately don’t feel we have the authority to address,” Zaafran said.
This long-awaited guidance is just that – guidance, setting out how the Texas Medical Board will investigate allegations of illegal abortions. The medical board can revoke the license of a doctor found to have performed an illegal abortion, and its findings could potentially be used by prosecutors or the attorney general’s office to decide whether to seek criminal or civil penalties.
“There is nothing that prevents a prosecutor in an individual county or an individual who wants to file a lawsuit from doing so,” Zaafran said. “But my hope would be, and my strong recommendation would be, that every unit out there would defer to the actions of the medical board and its judgment when a complaint has come in as to whether something was appropriate or not.”
Final instruction
Texas law prohibits abortion unless a physician, in his “reasonable medical judgment,” believes it is necessary to save the life or protect the health of the pregnant patient. Doctors have struggled to know when they can safely intervene without risking their medical license, as well as potentially up to life in prison and a $100,000 fine.
The Texas Medical Board was initially reluctant to provide physicians with guidance on how to interpret this medical exemption, even after the Texas Supreme Court urged the board to “evaluate various hypothetical circumstances, provide best practices, identify lines red and the like.
But after health care lobbyists and attorneys Steve and Amy Bresnen filed a formal petition calling on the board to act, it took charge. For lawyers, doctors and advocates hoping for strong clarification of the laws, the first draft of the guidance, released in March, was largely a disappointment. It mainly listed definitions from various Texas abortion laws and told doctors what they would need to document if they performed an abortion.
The guidance was criticized as too vague and too prescriptive. At a stakeholder meeting in May, Steve Bresnen said the board should not “be afraid to start with a blank slate.”
Instead, the board modified the proposed guidance and approved it at Friday’s meeting. Zaafran said some of what the board was asked to include in the guidance was beyond their scope, including adding exceptions allowing abortions in cases of rape and incest.
The board added additional definitions, including language from a law that provides doctors with protection if they intervene in an ectopic pregnancy or premature rupture of membranes. Additionally, the guidance echoes the Texas Supreme Court’s ruling that a physician should not wait until a medical emergency is imminent to perform an abortion.
“There is no need to wait until imminent harm occurs to act,” Zaafran said. “I can’t stress it enough. In fact, even though the Supreme Court mentioned it, there were enough concerns raised in the stakeholder meetings that we felt it was appropriate for us to specifically include it in the rule.”
While some advocates initially hoped the board would issue a non-exclusive list of conditions that would qualify for an abortion, the board rejected that request.
“Because each patient and their presenting condition is unique, any list would be incomplete and not necessarily applicable to a particular medical situation,” Zaafran said. “What if you have a situation, a condition that’s not on that list? Then there is an implication, even though it may be incorrect, that this is forbidden.”
The main point of the guideline lists documentation that doctors are expected to produce if they perform a medically necessary abortion. At the May meeting, doctors expressed concern that these details should be documented before they intervene, even during medical emergencies.
“A cesarean hysterectomy can lead to five liters of blood loss in three minutes,” said Dr. Joseph Valenti, an OB/GYN who serves on the Texas Medical Association Board of Trustees. “We don’t want to document while we’re losing blood or a baby is dropping heart tones.”
The new guidance removes some of the documentation requirements and says that doctors must create this documentation within seven days of performing an abortion. It also eliminated the provision that said doctors must document if they tried to transfer a patient to avoid performing an abortion.
Zaafran said there was “almost universal opposition” to that aspect of the guidance.
Initial reactions
LuAnn Morgan, one of the non-physician members of the board, raised concerns that this guidance did not go far enough to ensure that doctors feel safe treating patients.
“We can’t remove the hesitancy or the reluctance or the concerns or the fear of the doctors,” Zaafran said. “We cannot remove that fear of possible prosecution. … What we can do is outline as best we can what the processes are that we will follow in addressing complaints.”
Dr. Manuel Quinones, Jr., a family physician in San Antonio who serves on the board, said the doctor-patient relationship is “the most sacred thing.”
“This decision is, if I’m interpreting it correctly, it’s to protect that relationship, that decision that that doctor makes with that patient and that patient’s family at that very moment when somebody has to make a decision,” Quinones said. “Someone has to make that decision, and that’s what we’re trying to protect.
During public comment, Steve Bresnen raised concerns about how this guidance aligns with the Texas Supreme Court’s recent decision in Zurawski v. Texas, a case in which 20 women claim their medical care was delayed or denied because of state laws on the abortion.
In that decision, the court said the legal standard for bringing a case against someone who has had an abortion is that no reasonable doctor would have said the termination of the pregnancy was medically necessary.
Bresnen said this new guideline ignores that decision and will lead to ongoing legal challenges if a doctor is investigated for a botched abortion.
“In the meantime, that doctor and every doctor in the state will have been tortured because your rule does not change the burden of proof in a case alleging a violation of the abortion ban,” he said.
At the conclusion of the meeting, Zaafran said the final rule the board approved Friday is not necessarily the final word on the matter.
“We are not perfect. That’s why this is a process,” he said. “The final rules may be adjusted, revised, depending on the circumstances that may arise.”
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