At five hour hearing, no one is happy with Texas Medical Board’s proposed abortion guidance

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When Sarah Harrison addressed the Texas Medical Board at a virtual hearing Monday, she added her name to the growing list of Texas women who have shared stories of being denied medically necessary abortions.

Her testimony provided a timely example of exactly how confusing the state’s abortion laws can be in action, even to those tasked with enforcing them.

Harrison, an Austin attorney, learned late last year that one of her twins was not going to survive outside the womb. Her doctors advised her to travel out of state for a selective reduction to terminate the nonviable fetus.

On Monday, Harrison asked the medical board to more explicitly inform doctors they can perform selective reductions if continuing the pregnancy threatens the other fetus’ life. She pointed to the part of the law that says it is not an abortion if it is intended to “save the life or preserve the health of an unborn child.”

Stephen “Brint” Carlton, the board’s executive director, corrected her, saying that line applies to things like fetal surgeries and other interventions aimed at saving single pregnancies, not selective reductions of multiples. But then board chair Dr. Sherif Zaafran chimed in, saying that, in general, if a doctor feels a selective reduction is the standard of care and other expert physicians agree, it could potentially be allowed.

Harrison pushed back, saying her doctors did believe a selective reduction to be the standard of care.

“Under threat of criminal prosecution and losing their license, they were not going to provide a reduction because they couldn't prove that I was at serious risk of losing my life or serious bodily function,” she said.

Later in the hearing, a retired OB/GYN said he didn’t believe Harrison would have qualified for an abortion in Texas. Then, a health lawyer weighed in to say she agreed with Harrison’s interpretation of the law.

“I thought that exception applied until I heard you today,” Louise Joy, an attorney who advises Texas hospitals, said to Carlton. “But that’s the very confusion we have.”

This is but one example of the ongoing confusion among doctors and lawyers about how to interpret the new abortion laws. The medical board has proposed guidance to clarify some of that uncertainty, but five hours of testimony and hundreds of written comments later, it’s clear no one is particularly pleased with their first attempt including, it seems, the medical board itself.

Zaafran said repeatedly that they would consider revisiting aspects of the proposal where doctors’ interpretations of the guidance was at odds with the boards’ intent.

“If the board was perfect, which we’re certainly not, then that would be it,” Zaafran said. “But having 1,000 sets of eyes [helps with] highlighting things that we may have overlooked and blind spots that we may not have been able to highlight.”

Guidance pushback

The Texas Medical Board initially resisted calls to issue guidance to doctors on how to interpret the state’s new abortion laws. Even after the Texas Supreme Court called on the licensing agency to “assess various hypothetical circumstances, provide best practices, identify red lines, and the like,” the board averred.

But after Steve and Amy Bresnen, Austin attorneys and health lobbyists, filed an official petition, the board conceded, issuing this first proposal in March. At Monday’s stakeholder hearing, doctors, lawyers and advocates across the political spectrum testified that the guidance did not clarify when doctors can act and, in fact, adds additional confusion.

In addition to gathering all the definitions from different abortion statutes in one place, the guidance primarily lists out what doctors are expected to document when deciding whether to perform an abortion.

“Unfortunately, the increased requirements for documentation are truly unworkable,” testified Dr. Richard Todd Ivey, a Houston OB/GYN. “The need for literature searches, attempts to transfer patients by any means available, documentation of how we determined a woman's danger of death or serious risks, the need for consultations or opinions of medical ethics committees, attempts at alternative treatments and determination of a woman's risk to support a particular method of termination. These are all incredibly cumbersome and time consuming.”

Several people raised concerns that the documentation could delay care in an emergency situation.

“A cesarean hysterectomy can lead to five liters of blood loss in three minutes,” said Dr. Joseph Valenti, an OB/GYN who serves on the Texas Medical Association’s Board of Trustees. “We don't want to be documenting while we're having blood loss or a baby is dropping heart tones.”

Zaafran said it wasn't the board’s intent to require a doctor to document all of these things, or to document anything before acting in an emergency situation. He said the board would work to clarify that language.

Several speakers criticized the aspect of the guidance that tells doctors to document whether there was time to transfer a patient to another facility to avoid terminating the pregnancy. This provision sparked alarm among doctors and lawyers who felt it was adding an additional requirement that wasn’t in the law.

“The requirement to determine when there was an adequate time to transfer the patient by any means available is so vague as to be unworkable,” testified Molly Duane, senior staff attorney at the Center for Reproductive Rights. “Physicians need guidance on when they can provide abortions, not more reasons why they shouldn't.”

Duane said the board had an important role to play, and while some aspects of the guidance were useful, others were “very confusing and will inevitably chill physicians’ reliance on the medical exemption.”

Dr. Ingrid Skop, a leading anti-abortion OB/GYN based in San Antonio, testified that she has seen firsthand what happens when doctors hesitate to act. Last week, she said, she treated a woman in the emergency room who was hemorrhaging from a miscarriage that had been diagnosed two weeks earlier. Her doctor required her to have a follow-up ultrasound before he would surgically remove the fetal tissue, she said.

“He could have intervened and spared the woman the emotionally and physically traumatic experience that she had in my emergency room,” Skop testified. “Stories like this abound in Texas not because of the laws but because of the failure of hospitals and medical industry organizations to provide guidance to physicians.”

Skop said her fellow doctors’ fears were “irrational,” but called on the medical board to clearly reassure them that they can rely on their reasonable medical judgment to decide when to perform an abortion.

But with a potential for up to life in prison, a $100,000 fine and the loss of medical license for performing a prohibited abortion, some doctors testified that their fears are anything but irrational.

“These decisions should be made by a patient in consultation with their physicians, because that is the practice of medicine,” Ivey testified. “We as physicians want to work within the confines of the law, but we cannot do so if our hands are tied.”

Weighing imminence

In addition to Harrison, several women who say they were denied medically necessary abortions testified at the hearing. Kate Cox, a 31-year-old Dallas mom who sued to terminate her pregnancy after a lethal fetal anomaly diagnosis, testified that this guidance would not have helped her doctors, who agreed that she needed an abortion.

“We should not force pregnant Texans to get sicker or to wait for an inevitable miscarriage and go through childbirth to deliver a baby that has died or will certainly die,” Cox testified. “It is medically reasonable to give mothers and families the best chance at building their families which may include terminating a non-viable pregnancy so they can have a chance at a viable one. I needed that chance.”

The Texas Supreme Court ruled that Cox did not qualify for an abortion, even as it clarified in that ruling that a medical emergency need not be imminent to justify performing the procedure. Several groups, including the anti-abortion Texas Alliance for Life, called on the board to add this language to the guidance, which Zaafran said they would consider.

Zaafran said while it was clear doctors could act if there was an emergency situation, when “there’s a little bit more time to make a methodical judgment as to what should be done,” it might require a doctor to take the additional steps listed in the guidance.

“Let me clarify here that this is not just like any other typical medical procedure,” he said. “We’re talking about termination of a life here, and whether it is okay to do that.”

The board is considering testimony and written comments ahead of its June meeting, and will either put forward the existing guidance for a vote, or start the public comment process over again with revised guidance.

Disclosure: Texas Medical Association has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.

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