The 2021 passage of Texas’ abortion ban in Senate Bill 8, otherwise known as the Heartbeat Act, allows doctors to use their “reasonable medical judgment” to determine when an abortion is necessary. But that hasn’t been entirely straightforward legal guidance, as women like Kate Cox and Amanda Zurawski have found. As a result, medical professionals have been asking the state to get specific by publishing a list of medical cases that fit under the exception granting abortions when the life of the mother is threatened.
Last month, the Texas Supreme Court ruled against Zurawski and 21 other plaintiffs who claimed the unclear parameters resulted in their inability to receive abortions, even in cases of fetal non-viability or severe health complications. In its ruling, the court stated that the onus of providing practitioners with a list of cases is on the Texas Medical Board.
But Friday’s new guidelines, which were unanimously approved, were notably lacking that list.
“Because each patient and their presenting condition is unique, any list would be incomplete and not necessarily applicable to a given medical situation. It would be problematic if a condition that was appropriate but was not specifically listed occurred,” Texas Medical Board President Dr. Sherif Zaafran said in a statement. “This rule may not answer the concerns and questions that arise in every single situation. The reality is that the Board can only act where it has the authority to provide rules within the confines of the law.”
“It’s shocking that, for a state that claims to be pro-life, they would care so little about patients and physicians.” — Molly Duane, Center for Reproductive Rights
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In other words, the courts pointed to the board, and now the board is pointing to the state lawmakers who passed S.B. 8 in the first place. (One specific condition was named in the Texas Supreme Court ruling: that water breaking prematurely would be an acceptable reason for an abortion to be performed.)
Officials are tossing around the responsibility of clarifying reproductive legislation like a hot potato, but for medical professionals, the stakes are incredibly high. Not only does the guidance claim to outline what a doctor should and shouldn’t do, but it offers investigators a rubric for determining when an illegal abortion has taken place.
Doctors who are found to have performed an abortion illegally can face fines on top of criminal and civil prosecution.
“The penalties here are loss of their license and lifetime in prison. [Doctors are] being told to risk everything in service of patient care and being provided no guidance, no assistance and no support from any official in the state of Texas,” Molly Duane, senior attorney for the Center for Reproductive Rights, told the Observer. “It’s shocking that, for a state that claims to be pro-life, they would care so little about patients and physicians.”
BREAKING: The Texas Medical Board has unanimously adopted amended rules for physicians on the state's near-total abortion ban. It specifies that doctors have 7 days after performing an emergency abortion to complete documentation explaining why they thought it was justified.
— Monica Madden (@themonicamadden) June 21, 2024
While “pathetic,” the new guidelines were amended from a draft discussed back in March that was greatly criticized for introducing a system of “extremely burdensome documentation” required of doctors and for encouraging physicians to move patients to a different facility, if possible, to avoid performing a necessary abortion.
The Abortion Ban's Impact in Texas
Coincidentally, Friday’s “disappointing” ruling came just days before the two-year anniversary of the U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization, which overturned the constitutional right to abortion granted in Roe v. Wade. While reproductive rights advocates across the country are analyzing the effect of the ruling on their respective states, Duane said it “almost isn’t even a relevant data point for Texas” because S.B. 8 went into effect prior to the ruling.The effect of Texas' abortion ban is explored in a new investigation, published Monday by JAMA Pediatrics, which found that hundreds of babies died as a direct result of the statewide law. The spike in infant deaths was likely caused by birth defects or genetic problems, the study found, resulting from pregnancies that typically would have been terminated prior to the Heartbeat Bill.
Researchers studied “unexpected increases in infant and neonatal death” only in Texas in the year following S.B. 8’s passage, but officials expect similar spikes will be seen in other states that implemented abortion bans following the Dobbs decision.
“What we have in the state of Texas is going on three years of experience living under abortion bans, and what we know is women are suffering,” Duane said. “Babies are dying and no one in any position of power in Texas seems at all interested in addressing the public health crisis that they created themselves.”
