AUSTIN, Texas — On Friday morning, the Texas Medical Board met to propose a new rule that would allow doctors to perform a medically necessary abortion.
For more than a year, Texas women and their doctors have said the state’s law is unclear about when women could qualify for an abortion in Texas.
But instead of in the courts, that fight for more clarification made its way to the Texas Medical Board’s meeting agenda this week.
The new rule is similar to the current Texas statute, as the Texas Medical Board said it wanted to implement similar language. In the rule, the board defines reasonable medical judgment as “medical judgment made by a reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical conditions involved.”
The board also defines a medical emergency as “a life-threatening physical condition aggravated 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.”
Steve and Amy Bresnen were the two Texas attorneys who filed the petition for clarification after the Supreme Court denied Texas woman Kate Cox an abortion. Cox’s fetus had full trisomy-18, a lethal fetal anomaly that would have affected Cox’s health and her future ability to have kids.
“That's what brought us here,” Steve Bresnen said. “You've got people that are scared to death. They're facing death, and they're scared to death.”
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While some people asking for clarification were grateful to see the Texas Medical Board stepping in, they said that more detail could have been included in the rule. Steve Bresnen said that without certainty, doctors are still going to be at a standstill when it comes to performing abortions.
“Reasonable medical judgment means reasonable doubt,” Bresnen said. “A prosecutor must prove a crime beyond a reasonable doubt. If you give physicians sufficient guidance, sir, if you get sufficient guidance from this board and can make a reasonable medical judgment, you will have reasonable doubt when they try to put you in the penitentiary for 99 years.”
A list of all possible conditions that could constitute a doctor performing an abortion for a medical emergency is something that the board decided to leave out of the rule. The board’s president, Dr. Sherif Zaafran, said it just wouldn’t make sense.
“Things may change as far as what medicine can do to save a baby’s life, so a condition that may apply now, may not necessarily apply later on,” Zaafran said.
Zaafran said the board followed a similar guide frame during COVID-19, when it decided what types of elected procedures would be allowed.
But those fighting for clarity worry that leaving it up to a physician’s reasonable judgment may not stand up in a court of law.
“There is a person who is not reasonable who will, and has already shown in the Kate Cox case, will challenge doctors who are making reasonable medical decisions,” Josh Zurawski, Amanda Zurawski’s husband, said.
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But community members from organizations that oppose abortion rights expressed at the board's meeting that they believe the law is already clear as is and didn't need any additional clarification.
“The Texas abortion law is not broken. There are doctors who are confused,” Sue Liebel with Susan B. Anthony Pro-Life America said. "The solution isn't in upending standing policy, but rather to educate them they can use their reasonable medical judgement."
On the other side of the issue, plaintiffs in the Zurawski v. Texas case also attended the meeting and stressed the importance of making sure Texas doctors feel confident to do their job that saved their lives.
“I am currently pregnant today because I got an abortion,” plaintiff Taylor Edwards said. "I will be a mother because I got an abortion. That is something I think is being missed with all these conversations.”
Another stipulation with the proposed new rule is that Texas doctors will have to go through a documentation process when performing an abortion. The Center for Reproductive Rights released a statement Friday saying while they’re hopeful the Texas Medical Board is taking this seriously, the current proposal misses the mark. Below is a part of that statement:
“The proposed rules also create a new and extremely burdensome documentation system that physicians must use when providing abortions under the exception that includes documenting whether there was ‘adequate time to transfer the patient’ ‘by any means available’ to a different facility to avoid having to perform an abortion. This is not what medical providers and patients need.”
Now that the proposed rule is published in the Texas Register, the community will have 30 days to submit written comments. The Texas Medical Board is required to read and respond to every comment. The board anticipates receiving many comments, so it said it doesn't expect to adopt that rule until at least its next board meeting in June, if not even later in August or October.
If substantial changes are made to the proposed rule by the next meeting, the public comment process will happen again.