The Texas Medical Board (“TMB” or “Board”) has opened a public comment period for its newly proposed rules and purported guidance concerning the provision of emergency abortions under Texas’ current abortion laws, known to be some of the most restrictive in the country. These proposed rules aim to define the conditions under which abortions may be legally performed, detail the documentation requirements for such procedures and explain how the Board will handle complaints about physicians accused of having allegedly violated the ban.
However, these proposed rules have drawn criticism for their vagueness, leaving health care providers in a difficult position as they try to interpret when an abortion falls within the legal exceptions. Providers who wish to provide input—especially those providers who believe they and their patients would benefit from additional clarity—have until April 22, 2024, to submit comments. The Board will decide at its June meeting whether to accept the proposed rules as they are or make changes and solicit more comments. Comments may be submitted electronically here.
Texas’ Abortion Ban: Legal Framework
The legal framework, established under Chapters 170–171 of the Texas Health & Safety Code (the “Statutes”), prohibits abortions at any stage of pregnancy with very limited exceptions, the primary being if the examining physician determines there’s a life-threatening emergency to the pregnant patient. This includes bans starting from six weeks of gestation and extends to prohibiting abortions after twenty weeks post-fertilization and throughout the third trimester.
According to the Statutes, an abortion is permissible under medical emergencies. A “medical emergency” is defined to mean, “a life-threatening physical condition aggravated by, caused 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.” The Statutes also place responsibility on physicians to exercise “reasonable medical judgment,” which is defined to mean the “medical judgment made by a reasonably prudent physician, knowledgeable about a case and the treatment possibilities for the medical conditions involved.” The Board proposes to adopt these existing legal definitions—verbatim—without any further clarification or specificity.
Critiques and the Need for Clearer Rules
The definitions in the Statutes have already been criticized for being circular and vague, and the Board’s proposed rules notably fail to elaborate on what specific conditions or scenarios constitute such medical emergencies, with the sole exception of ectopic pregnancies—an exception already recognized under existing Texas law. This omission leaves a significant gap in guidance for physicians, who are entrusted with the responsibility to exercise their reasonable medical judgment under considerable legal and ethical pressures, potentially creating an even deeper environment of uncertainty and leaving physicians grappling to understand when an abortion would potentially qualify as life‑saving.
The Texas Supreme Court (“Court”), in its recently-decided case involving Kate Cox, a 31-year-old expectant mother of 20 weeks’ gestation, who sued for the right to terminate her pregnancy after receiving a diagnosis of full trisomy 18 for her fetus, highlighted the TMB’s capability and duty to offer more detailed guidance to dispel the current confusion among health care providers, stating: “The Texas Medical Board, however, can do more to provide guidance in response to any confusion that currently prevails… the legal process works more smoothly when they do.” In a footnote, the Court further suggested that the Board could assess various hypothetical circumstances, provide best practices, identify red lines and promulgate similar needed guidance as it has done in other contexts, such as during COVID-19. Finally, the Court highlighted that the Board could also seek opinions from the Attorney General on the legal implications of compliance with its guidance, given the Attorney General’s significant civil enforcement powers.
Despite the Court’s ruling against Cox, leading her to seek abortion services outside Texas, the Court’s comments highlight a significant concern: without clear, detailed rules, physicians and patients are left to navigate a complex legal landscape with little to no guidance on how to comply with the law, thereby endangering both patient wellbeing and possibly implicating serious legal repercussions for such health care providers.
Practical Takeaways: A Call for Specificity and Guidance
- The ambiguity of the TMB’s proposed rules not only complicates potential compliance but also places potential burdens on health care providers who are committed to delivering urgent, life‑saving care.
- The documentation requirements introduced by the proposed rules further exacerbate the challenges faced by physicians, requiring detailed records that could delay necessary medical interventions.
- Stakeholders may submit feedback during the current public comment period, which runs until at least April 22, 2024, and seek clarifying guidance to health care providers regarding the Statutes and proposed rules from the TMB.
For tailored insights and guidance on how the proposed rules could impact your health care practice or for assistance with comment submission, please contact:
- Brandon Kulwicki at (214) 615-2025 or bkulwicki@hallrender.com;
- Avi Kerendian at (214) 615-2038 or akerendian@hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
