Texas Medical Board Will Finally Consider Clarifying Abortion Ban’s Medical Exception

The Texas Medical Board announced on Thursday that it will consider issuing guidance on what exactly qualifies as a medical exception under the state’s total abortion ban, which offers a nebulous and unhelpfully vague exception for threats to the pregnant person’s life. In a meeting agenda published to the Texas Registrar, the agency says that at this week’s meeting, it will consider and take “possible action on rules regarding exceptions to the ban on abortions.” 

This comes in response to a January petition filed by attorneys Steve and Amy Bresnen, asking the board to give “clear guidance” on the medical exception after the Texas Supreme Court declined to allow a woman named Kate Cox to receive an emergency abortion for her nonviable, health-endangering pregnancy in December. “TMB has been considering rulemaking options since the statute went into effect and will proceed with rulemaking,” the Texas Medical Board’s general counsel, Scott M. Freshour, wrote to the Bresnens on Thursday. Freshour said the agency will “consider alternate draft language,” but that “this is only a first step in the rulemaking process.”

Texas law currently bans all abortions and threatens doctors that violate the statute with life in prison and fines up to $100,000, as well as loss of medical license. The only stated exception the abortion ban provides is when, “in the exercise of a reasonable medical judgment,” a doctor determines that their patient is facing “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function.”

The Texas Medical Board has agreed to consider clarifying medical exceptions in state abortion law, following a petition request from attys Amy and Steve Bresnen — and amid a lawsuit from 20 women asking the state for clarity. The process kicks off on March 22. pic.twitter.com/nzp7tljwBW

— Mary Tuma (@TumaTime) March 14, 2024

The TMB’s decision to weigh this language and potentially determine which emergency abortions are permissible in the state is a hollow victory, if one at all. The members of the agency (12 physicians) are appointed by the governor of Texas. In 2021, the same year he signed the state’s notorious bounty hunter abortion ban, rightwing Gov. Greg Abbott appointed seven members to the agency, whose terms don’t expire until 2027. That’s who will be making this decision.

Then there’s the matter of everything that had to happen for us to arrive at the possibility that the state might consider helping people in a few rare cases. Last year, over a dozen women sued Texas claiming that its abortion ban threatened their lives and health, because they were denied or received extremely delayed emergency abortion care in emergency medical cases. One plaintiff, Amanda Zurawski, has testified that she experienced severe pregnancy-related complications that led to a life-endangering sepsis infection and the permanent closure of her right fallopian tube, which has threatened her fertility, even as she still hopes to have kids. Other plaintiffs include Ashley Brandt, a mother of two who was forced to leave Texas for emergency abortion care after one of the twins she was carrying was diagnosed with a fatal condition that threatened Brandt’s health, and Dr. Austin Dennard, an OB-GYN who also had to travel out of state to receive abortion care for a nonviable, dangerous pregnancy. Brandt testified last year that her husband has gotten a vasectomy because she doesn’t want to become pregnant in the state of Texas again. 

Theirs are just a few of the stories of people and families who have been forced to suffer in tangible, life-threatening ways before the Texas Medical Board would even talk about maybe clarifying the state abortion ban’s ineffectual medical exception. Plus, I’m sure the upcoming meeting will be full of nauseating debate over pregnant people’s life-threatening experiences, and just how close to death someone needs to be to legally receive abortion care without their doctor going to prison. 

If the agency makes any changes regarding medical exceptions, they will be published in the Texas Register and be subject to a 30-day public comment period before being finalized. But at this point, that seems like a pretty big “if” to me.