Texas Medical Board doesn't go far enough
Doctors still don't have adequate legal protections to provide necessary abortion care
The Texas Medical Board just issued new guidelines about when doctors are permitted to perform abortions under the state’s ban.
They clarified that they permit abortions for ectopic pregnancies. That was received well by the abortion rights community. There were other decisions by the board that weren’t as popular. Most people complained about the transfer provision, which required doctors to document whether they had tried to transfer the patient to a different facility to perform an abortion. That’s now been changed. Amy Bresnen, a lawyer who had been heavily involved in attempts to reform the law, explained to me that an expert panel will decide whether a doctor has violated the abortion statutes when a complaint is filed.
Dr. Sherif Zaafran, president of the Texas Medical Board, spoke at the meeting.
“There are certain things we can address,” Zaafran said. “And there are certain things that we ultimately don’t think we have the authority to address.”
The board didn’t list specific medical conditions that would serve as exceptions.
“The concern with a list is what if a situation arises where something is not on that list,” Zaafran said.
How to treat abortions under the exception provisions of the law had been volleyed between the State Supreme Court and the health board. The Human Life Protection Act, which makes abortion punishable by up to 99 years in prison in Texas, has a stipulation. A woman with a life-threatening physical condition and her physician has the legal authority to proceed with an abortion to save the woman's life or primary bodily function.
The Supreme Court found that doctors listed as plaintiffs had legal standing because they could be prosecuted under the order. The woman didn’t, though. The state supreme court judges wrote in the majority opinion the burden is the State’s to prove that no reasonable physician would have concluded that the mother had a life-threatening physical condition that placed her at risk of death or of substantial impairment of a major bodily function unless the abortion was performed. It was a deferential opinion insofar as placing the burden of proof on the state to show that no other doctor would have performed an abortion in those hypothetical situations.
Bresnen explained her frustration with the medical board after that decision came down.
“The most important takeaway is that the medical board wanted to wait until the end of the litigation before they took to rulemaking,” Bresnen said. “They waited until the Zurawski opinion came out and then completely ignored the holding and the Zurawski opinion.”
Bresnen said the board's rules are much narrower than the protections provided by the Zurawski decision. She said doctors should have a good attorney.
“Does this alleviate the need for a doctor to call a lawyer?” Bresnen said. “Absolutely not. In fact, it might make it even more important because the new rules do not reflect the standard in Zurawski.”