Amid ongoing uncertainty about when abortions are permissible in Texas, the state’s medical board is under growing pressure to issue guidance on what type of emergency qualifies for an exemption from the state’s abortion ban.
Two high-profile abortion supporters filed a petition in January requesting the board define what would be grounds for a legal abortion, and their efforts are backed by activists from across the political divide. “We think that timing is overdue for the Texas Medical Board to act,” said Joe Pojman, executive director of Texas Alliance for Life, an anti-abortion group.
The medical board has so far resisted calls from advocates, state lawmakers, and the courts to bring clarity to the state’s abortion laws, but the petition requires a response by mid-March. Without specific guidance on what exactly constitutes an emergency, doctors and hospitals fear prosecution and other repercussions for performing procedures whose legality is uncertain, and pregnant patients whose lives are at risk have had to leave the state for abortions.
“The cost of making that judgment and being deemed wrong are huge,” said Dallas OB-GYN Damla Karsan, who unsuccessfully sought a court’s permission to perform an abortion for her patient Kate Cox in December. Physicians found to have performed illegal abortions risk loss of license, up to 99 years in prison, and $100,000 in fines.
Abortion has been severely limited in Texas since 2021, when SB8 prohibited abortion once a fetal heartbeat is detected, and the restrictions increased following the Supreme Court’s decision to overturn Roe v. Wade in 2022. The law permits abortion only in a “medical emergency” to save the life of the pregnant patient or prevent “substantial impairment of major bodily function.” That language leaves room for interpretation, and Texas courts have offered differing opinions on when pregnancy termination is legal.
When the Texas Supreme Court ruled that Cox could not legally have an abortion, overturning a lower court’s decision, the justices explicitly called on the Texas Medical Board to issue guidance. Cox had been in and out of emergency rooms, her fetus was diagnosed with the lethal condition trisomy 18, and the pregnancy, according to her legal petition, put her “at high risk for severe complications threatening her life and future fertility, including uterine rupture and hysterectomy.”
Yet the court declared the decision was up to physicians, not judges, and that the ruling would not necessarily block a “life-saving abortion” in the very same circumstances. “The Texas Medical Board, however, can do more to provide guidance in response to any confusion that currently prevails,” wrote the Texas Supreme Court in its decision.
The case, Karsan told STAT, revealed “the whole climate of intimidation,” wherein the courts both said physicians had the knowledge to make judgements, while also finding her decision invalid. Yet she was similarly frustrated by the silence from the medical board. “I don’t feel like they’ve been our partners in patient care,” she said.
The petition filed January 16 by Steve and Amy Bresnen, attorneys in Austin who acted on their own behalf in filing the petition and not for any client, called on the medical board to address the confusion by outlining “many of the conditions that may constitute medical emergency exemptions” and identifying steps physicians could take to make sure their views are within the legally required “reasonable medical judgment.” The Supreme Court “very explicitly left breadcrumbs to the executive branch,” Amy Bresnen said in an interview.
The board now has 60 days to respond, and must either take up the petitioners’ requests or explain why it’s declining to do so.
Several groups in Texas say they’ve been requesting such guidance from the medical board for months. Pojman, from Texas Alliance for Life, said his organization sent a letter to the board in June 2023 asking for a meeting with staff and never heard back; Texas Republican state Senator Bryan Hughes wrote to the board in August 2022 to request guidance, citing allegations of hospitals refusing to treat ectopic pregnancies or miscarriages; and John Seago, president of Texas Right to Life, said he repeatedly spoke with Texas Gov. Greg Abbott — a Republican who appoints the medical board — during legislative sessions last year to ask the governor to speak with the board about creating such rules.
Abbott’s office did not respond to requests for comment; nor did Texas Medical Board president Sherif Zaafran and executive director Brint Carlton.
Zaafran told The Texas Tribune in December, “We’re going to hold back on getting involved in anything until all these issues, at least at the judicial setting, are resolved. It wouldn’t be appropriate for us to start making any kind of movement or decisions while all that is out there still being adjudicated.”
To the Bresnens, that effectively means waiting forever. “It hasn’t been over for the 50 years since Roe,” said Steve Bresnen.
Despite their strong differences on abortion, lobbyists on both sides of the debate said they support the Bresnens’ petition; “I was very grateful that they have initiated this process,” said Pojman.
Ultimately, said Steve Bresnen, high-profile cases of women who were denied urgent medical care during nonviable pregnancies reflect badly on Texas’s law. “We’re in the politics business,” he said. “It would be very bad for their [anti-abortion] side if women are dying right and left who could have been saved.”
The petition is also supported by Donna Howard, a Democratic state representative and chair of the Texas Women’s Health Caucus. “I would want to ultimately see this prohibition [on abortion] overturned, but in the meantime I want to do everything I can to save every woman I can,” she said. “I don’t want the perfect to get in the way of the good.”
Other advocacy groups in favor of abortion were more hesitant. Wendy Davis, senior advisor at Planned Parenthood Texas Votes, said doctors should be unilaterally trusted. “No one should have to ask a medical board, a legislature or a court to substitute their opinions for a physician’s first-hand medical judgment, and no patient should need to have their medical care subjected to a pre-determined list of ‘acceptable situations’ in which an abortion can be provided where that patient’s health is at risk,” she wrote in an email to STAT.
Seago cited Zurawski v. State of Texas, a case pending review from Texas’s Supreme Court, as an example of “medical malpractice.” The lawsuit alleges Amanda Zurawski went into septic shock, spent three days in intensive care, and was left with a permanently blocked fallopian tube after doctors failed to end her pregnancy once she developed preterm pre-labor rupture of membranes (PPROM). The fetus is unlikely to survive in such cases, and the patient is at high risk of infection. Another woman represented in the Zurawski case, Anna Zargarian, was told her baby would not survive and she was at risk of hemorrhage and sepsis after her water broke at 19 weeks, but doctors refused to provide an abortion, forcing her to fly to Colorado for care.
PPROM should be a clear-cut case where an abortion is warranted, said Seago, and “doctors shouldn’t hesitate at all.” The law doesn’t state that death must be imminent for doctors to act, he added: “Our law does not have any reference to time. It does not have to be imminent, it can be a foreseeable threat.”
Pojman similarly cited the Zurawski case as an example that shows the need for the medical board to clarify the law. “It’s terribly tragic that any woman would not receive prompt treatment to further put her life in danger,” he said.
A recent STAT analysis of public abortion data found that Cox, who ultimately traveled elsewhere for an abortion, is likely one of hundreds, if not thousands of women who were unable to get an abortion in Texas though their physical health was endangered. Physicians in Texas and elsewhere, faced with the possibility of severe penalties if they’re found to have acted outside the law, have told STAT they don’t feel comfortable following the medical standard of care in these situations, which often involves trying to head off an emergency.
“Hospitals aren’t comfortable with abortion unless there’s imminent danger,” said Karsan. “In medicine, there’s a practice of minimizing risk, so it goes against everything we do to sit around and wait for someone to get sicker.”
The Texas Medical Association, which lobbies on behalf of physicians, is skeptical the medical board can resolve the uncertainty on its own. “It’s not going to be enough to only rely on [medical board] guidance that’s not binding,” said Rick Snyder II, the group’s president. The association is still considering requesting action from the medical board, he said, because its guidance could provide a useful defense for physicians in court, but it wouldn’t be sufficient. “We’re going to want legislative clarity to be sure.”
Last year, Texas lawmakers passed a bill stating that physicians were “justified” in providing an abortion for cases of ectopic pregnancy and PPROM, and that doing so was an “affirmative defense” in cases of civil liability. This wording doesn’t protect against physicians being sued, prosecuted, or convicted, however. “A justification is a defense. The only reason you’re using a defense is if you’ve already been charged for something,” said Steve Bresnen. “You could do a lot better by just saying there’s no cause of action.”
And beyond those two diagnoses, said Snyder, there are many other instances where the mother’s life is at risk, but where physicians would be hesitant performing an abortion without explicit legislative approval.
Currently, not only do physicians have to contend with the ban, but also a law making them vulnerable to civil lawsuits and a 1857 law banning abortion, which Texas lawmakers argue came back into effect after the fall of Roe. All three have different wording around permitting abortions when a mother’s life is at risk. And, Snyder said medical professionals have a different conception of emergency from the Texas Supreme Court’s declaration that an emergency does not have to be time sensitive.
“To me, a medical emergency means: ‘It’s now, it’s imminent,’ That would be the view of most physicians,” he said. “The vagueness of the law conflicts on how we practice.”
Snyder called for legislative amendments that mirror the guidance already existing among medical professionals. For example, he said, cardiologists are advised by their professional society to offer the option of an abortion if the mother has a diagnosis such as severe pulmonary hypertension or severe heart disease, which can sharply increase the risk of death during pregnancy. Such policies should be reflected in Texas law, he said.
Since Cox’s case in December, her OB-GYN Karsan has seen other mothers who needed an abortion to protect their “physical and mental health and safety,” but who did not feel able to get the care they needed in Texas. She said she knows of fewer than five physicians left in Houston, including herself, with training in second trimester terminations, and so she tends to see many of the high-risk cases. Karsan has chosen to stay in Texas to help patients, and while she’s cautious about proceeding based on her own medical assessment, she said she would support anyone else who wanted to petition the courts for a legal abortion, though few do.
“Kate is incredibly brave to be willing to be the face of this fight in the midst of such a personally traumatic experience,” said Karsan. “Most people just want to keep their heads down and not get any attention.”
Many Texans who need abortions are traveling elsewhere while pregnant. Marta, a 36-year-old in Houston who asked to be identified only by her first name for fear of legal trouble, was more than six months pregnant when doctors realized there was a hole where part of her baby’s brain should be. Not only was the fetus unlikely to survive but, doctors warned, Marta risked being poisoned if it died inside her.
In what she described as “the most awful experience ever,” she had to fly to New York for a procedure, whose $15,000 cost was covered with the help of abortion funds. “If we didn’t have the funding and relatives and friends, we wouldn’t have been able to get it done,”Marta said. “It’s crazy my life depended on it.”
The abortion itself was so painful she needed fentanyl, but the emotional loss was even worse, she told STAT. She had to return home before the child’s ashes were ready, and the New York crematorium wouldn’t mail them over state lines. Her only option was to plan another round trip flight to collect the ashes, but she and her husband couldn’t afford the trip.
She said she “absolutely” supported efforts to get more legislative protections for abortions. Her family is devoutly Christian and anti-abortion but, in her case, they couldn’t believe abortion was illegal, she said: “It wasn’t even a question.”
This story is part of ongoing coverage of reproductive health care supported by a grant from the Commonwealth Fund.