Texas Medical Board asked to issue guidance on state abortion laws

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Two attorneys have asked the Texas Medical Board to clarify what qualifies as a medical exception to the state’s abortion laws, following the Texas Supreme Court’s rejection last month of a Dallas woman’s attempt to terminate her nonviable pregnancy.

The petition, filed Tuesday by attorneys Steve and Amy Bresnen, who are also lobbyists, asks the board to issue “clear guidance” about when an abortion is allowed under the law. Dr. Sherif Zaafran, the board’s chair, said the agency is in the process of reviewing it. The medical board expects to respond by the end of this week, he said.

Since Texas banned nearly all abortions in summer 2021, dozens of women have come forward to say they were denied medically necessary abortions for their complicated pregnancies. These women have said they should have qualified for an abortion under the state’s narrow medical exceptions, but their doctors were too fearful or unclear on the law to perform the procedure.

“It's time for the Medical Board to get off the sidelines. The fact that life-threatening conditions related to pregnancy are driving women out of state for abortion care is not acceptable,” Steve Bresnen said in an email to The Texas Tribune. “The Legislature, the Governor, the Supreme Court of Texas and physicians have asked for clarity and the TMB has the power to give it. There is no excuse for further delay."

In Texas, the medical board can revoke a doctor’s license if they violate the state’s abortion laws. Texas’ Supreme Court asked the board in December to provide doctors with more guidance on interpreting those statutes after the court rejected Dallas resident Kate Cox’s request for a medical emergency abortion.

The court’s request prompted the Bresnens to also ask for clarity from the board. Their petition also calls on the board to identify steps doctors can take to ensure that their decisions are in line with the standards for a medical exception.

The petition also asks the board to prohibit complaints against doctors that are not supported by specific evidence that an abortion performed in Texas was illegal.

“The downside risks of performing (an abortion) in an uncertain world are, you can lose everything, including your freedom, for 99 years,” Steve Bresnen said. “Physicians and hospitals need the state to tell them, ‘Here’s what this exception means, and here’s how you go about making sure that you’re acting within the exception so it minimizes your legal risk.’”

In response to this petition, the Texas Medical Board could publish a rule addressing the medical exception in the Texas Register. If that rule is published, there will be a 30-day comment period before a final rule is issued.