New abortion exception guidelines face criticism from attorneys

AUSTIN (Nexstar) - The Texas Medical Board unanimously approved new rules Friday morning providing additional guidance for the circumstances in which doctors can perform emergency abortions legally in the state.

Amy and Steve Bresnan originally petitioned the Texas Medical Board to clarify the guidance. They said the approved guidelines don't do enough and are considering petitioning the board again.

"We are disappointed," Amy Bresnan said. "We don't think that doctors will feel any more comfortable providing abortion care where it's necessary under the statute, which means that women are not as safe as they were, before or after these rules were adopted."

The new rules will require physicians to complete documentation explaining how and when they decided to perform an abortion, within seven days after giving a patient an emergency abortion under the state's near-total ban on the procedure.

"If a woman’s life is in danger there is no uncertainty there," said Texas Medical Board President Sherif Zaafran, M.D. "That is where action should happen quickly."

The guidelines announced at the meeting removed some provisions that required doctors to document if they tried to transfer a patient to another doctor or facility to avoid the abortion. But the Bresnans said the board did not get rid of the provision altogether.

"They took that out of the documentation part and put it over into the part of what a disciplinary panel should consider," Steve Bresnan explained. "That's an upgraded, if you will, standard. It's a lot less of a being implied as it is being made more substantive and direct. That's moving backward."

The Bresnans see that as a significant change that should have kept the board from approving the guidelines.

"We do think that this rule is required under statute to be republished because there were substantial changes and under statute that means that they have to give the public notice and seek comment," Amy Bresnan said.

Pressure around clarifying the law started growing after a group of women sued the state over its abortion law, saying they were denied abortion access in Texas, despite having pregnancy complications that risked their lives or the life of their baby.

In May in the same lawsuit, Zurawski v. Texas, the Texas Supreme Court upheld that the medical exceptions in Texas’ abortion ban are sufficiently broad, and do not require doctors to allow their patients to approach death before intervening.

"The Zurawski opinion, in particular, set a very high standard that the state has to prove, in order to punish a doctor who performs an abortion," Steve Bresnan said. "And it's basically that no other reasonable physician would have arrived at the conclusion that the woman's life was threatened. That's an extremely high standard. But the medical board today through its comments indicated that it's treating these like any other garden variety, medical malpractice claim. It's not."

Under the guidelines, a doctor who performs an emergency medical abortion could be penalized after board review if they did not obtain a second opinion from another doctor and attempt to transfer the patient to another hospital or physician.

"It's a long, dark road for doctors and women and for families who are wanting to grow their families and have more children," Amy Bresnan said. "We are considering petitioning the medical board with regard to rebuttable presumption language, which would basically codify Zurawski, which, of course, we think, should be in the rules that were adopted today."

The Bresnans said they petitioned the TMB for immediate relief for women with life-threatening pregnancy complications because the legislature was not in session.

The TMB published new language in late March to clarify possible exceptions.

The proposal in March included a series of definitions for terms like “reasonable medical judgment,” “medical emergency,” and “major bodily function.” It also clarified that removing an ectopic pregnancy is not an abortion.

In the previously published guidelines, the TMB said that an abortion may only be performed in compliance with all provisions of the Texas Health and Safety Code. The physician must also document that the abortion was performed due to a medical emergency where the woman faced a significant risk of severe impairment or death, providing evidence that abortion was the only viable option to preserve her life.

The Texas Medical Board consists of 12 physicians and seven members of the public who the governor appoints. One member is an OB-GYN.