After Texas abortion ruling adds to confusion, will the state’s medical board step in?

In its ruling this week denying a Dallas woman’s petition for an emergency abortion, the Texas Supreme Court said it was the responsibility of physicians — not the courts — to interpret exceptions to the state’s abortion bans. And it suggested that the Texas Medical Board can do more to help them.

The government-appointment board can “assess various hypothetical circumstances, provide best practices, identify red lines,” the court wrote, adding that the board also can seek an opinion from Attorney General Ken Paxton. 

But the medical board has so far been silent on how physicians should navigate the legal gray areas around patients like Kate Cox, the 31-year-old Dallas woman, despite requests from people on both sides of the abortion debate. And in a phone call with Hearst Newspapers, Dr. Sherif Zaafran, the president of the board, said it would be impractical to weigh in on specific situations.

“We can’t put up every single hypothetical scenario that’s out there,” Zaafran said. “At the end of the day, what you can reference is what the attorney general put out there, and that’s what we put on our website.”

Zaafran declined to say whether the board would issue guidance, citing pending litigation. Asked about existing guidance, he referred to a July 2022 advisory from Paxton after the reversal of Roe v. Wade, emphasizing that his office will pursue civil and criminal penalties against anyone who violates the state’s bans.  

Cox’s case highlights a familiar pattern of finger-pointing that has emerged since Roe was overturned. Patients and doctors say the law’s exception lacks clarity; Republican lawmakers blame doctors for misinterpreting the exceptions. Now, the state Supreme Court wants to “wash their hands” of the issue by kicking responsibility back to doctors, said Seema Mohapatra, a professor at Southern Methodist University’s Dedman School of Law. 

In Texas, physicians can perform an abortion only if the pregnancy puts the patient at risk of death or poses a “serious risk of substantial impairment of a major bodily function.” The law allows physicians to terminate an ectopic pregnancy, in which a fertilized egg grows outside the uterus, but does not include exceptions for fatal fetal anomalies, rape or incest.  

That exception has been at the heart of an ongoing lawsuit filed by the Center for Reproductive Rights, involving 22 plaintiffs who say they were denied abortions despite having dangerous or unviable pregnancies. They say their doctors feared violating the unclear law, which carries overlapping threats of prosecution, hefty fines and a loss of their medical license. 

For months, patients, lawmakers and physician groups have asked the medical board to weigh in. One of the 22 plaintiffs, Elizabeth Weller, reached out to the board for help after doctors delayed care for a dangerous pregnancy complication last year. The board responded by telling her she could submit a formal complaint against her doctor, according to court documents. Weller felt her physician was her only advocate, and her complaint “went nowhere,” court documents say. 

The Texas Medical Association also sent a letter to the medical board last year, according to earlier reports, asking it to “swiftly act to prevent the wrongful intrusion into the practice of medicine” after receiving complaints that some Texas hospitals refused to treat certain pregnancy complications. State Sen. Bryan Hughes, who authored a six-week abortion ban that remains in place alongside the state’s full ban, caught wind of those complaints and sent his own letter to the board: “These complaints arise from confusion or disregard of the law in Texas … and must be corrected.” 

Hughes, Lt. Gov. Dan Patrick, Gov. Greg Abbott and other authors of Texas abortion laws did not respond to questions about the need for more guidance. 

The medical board comprises 12 physician members and seven public members appointed to six-year terms by the governor and confirmed by the Senate. The board typically interviews candidates for licensure, weighs disciplinary issues and adopts procedural rules. At least one OB-GYN currently sits on the board.  

Given the strict penalties for abortion law violations, it’s unclear whether the board’s guidance would give physicians and hospitals enough confidence to decide what qualifies for an exception. The American College of Obstetricians and Gynecologists also says it’s dangerous for states to create lists of qualifying medical conditions  — as Louisiana public health officials did last year — because it’s impossible to include every complication that can arise during pregnancy. 

Some lawyers, however, say any guidance from the medical board would be helpful. 

“Specific guidance would reassure physicians that they could exercise their medical judgment in these urgent cases and be backed up by state authorities,” said Elizabeth Sepper, a law professor at the University of Texas at Austin. 

Sepper acknowledged the “downside” to providing specific advice. But Mohapatra said the board doesn’t need to list conditions. More generalized guidance could encourage hospital legal teams to act quickly. The advice also could support legal arguments that a doctor used reasonable judgment. 

“It’s not going to cover every single situation,” said Mohapatra, who specializes in health law and bioethics. “But in some of those situations, people have said that this (condition) clearly fits within the exception, yet they had care delayed or denied. If there had been hypotheticals or some kind of guidance from the medical board, then the hospital and hospital counsel could say ‘OK, go ahead.’ That would have helped.” 

The state Supreme Court’s decision this week provided “limited” help in understanding the law, said Sepper. The court opinion explained that a patient’s risk of death or loss of a bodily function does not need to be “imminent.” But the court introduced more confusion, by saying that physicians have “discretion” while insisting that they use “reasonable medical judgment,” Sepper said. 

That language “may allow a prosecutor to second-guess the doctor and argue that her determination of the severity of the patient’s condition wasn’t reasonable after all,” Sepper said. 

In Cox’s case, her fetus was diagnosed with a devastating genetic abnormality called trisomy 18, which almost always ends in a miscarriage or stillbirth. Going through with the pregnancy would put her life in danger, her lawyers with the Center for Reproductive Rights argued. But the court on Monday said she did not meet the standard for the state’s “medical emergency” exception. Cox ultimately received an abortion in another state. 

Adding to the confusion was a letter that Paxton sent to hospitals where Cox’s doctors had admitting privileges, threatening them with prosecution if they followed a lower court’s order that initially approved her request. 

Not everyone is confident that the Texas Medical Board’s voice will help. When it comes to pregnancy complications, there are too many scenarios to boil down into useful advice, said Molly Meegan, chief legal officer for The American College of Obstetricians and Gynecologists. Doctors also might face penalties for not following that guidance “to a tee,” she said. 

“It’s like putting a Band-Aid on a dam that’s breaking,” she said. 

Cayla Harris and Taylor Goldenstein contributed to this report.