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Last week, in rejecting Kate Cox’s bid to terminate her nonviable pregnancy, the Texas Supreme Court called on the Texas Medical Board to offer doctors more guidance on how to interpret the state’s abortion laws.
“While the judiciary cannot compel executive branch entities to do their part, it is obvious that the legal process works more smoothly when they do,” the justices wrote.
Dr. Sherif Zaafran, the board chair for the Texas Medical Board, declined to comment on the agency’s plans, but said it was unlikely the board would intervene while other court cases were proceeding.
“We’re going to hold back on getting involved in anything until all these issues, at least at the judicial setting, are resolved,” board chair Dr. Sherif Zaafran told The Texas Tribune. “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.”
As the licensing and disciplinary agency for Texas doctors, the medical board has the power to revoke a doctor’s license for violating the state’s abortion ban. The agency has, in the past, offered guidance to doctors on new and controversial topics, including COVID-19, and could “assess various hypothetical circumstances, provide best practices, identify red lines, and the like,” the Supreme Court said.
But many doctors, and the advocacy groups that support them, say additional guidance from the state medical board is not enough to allow them to feel confident performing an abortion in Texas.
“Medical emergency exceptions, the way they're written, don't work in real life,” said Molly Meegan, chief legal officer at the American College of Obstetrics and Gynecologists. “So it's very difficult for a medical board to give better advice than anyone else.”
Even a thorough list of medical conditions that would justify an abortion can’t capture the complexities and nuances of every individual case, Meegan said, and the stakes are too high for doctors to try to guess.
While guidance from the agency might help doctors protect their licenses, it wouldn’t stop a prosecutor from bringing criminal charges or the attorney general’s office from pursuing fines north of $100,000.
“These decisions have to be committed to the discretion of the physicians, in consultation with their patients,” Meegan said. “We have to trust our physicians … and to argue that they need legislative supervision to do their job is both impractical and dangerous for women.”
But even as the Texas Medical Board tries to remain out of the abortion issue, its role as the doctor disciplinarian means it may be forced to deal with it one way or another. In September 2021, the agency received a complaint against a San Antonio OB/GYN who publicly flouted the state’s six-week abortion ban. And in other states, the medical board has become a key part of enforcing strict abortion bans.
What is the Texas Medical Board?
The Texas Medical Board has 19 members — 12 doctors and seven members of the public, although only 16 spots are filled at the moment. The current board skews male, with only four women, and only one female doctor. There’s one OB/GYN currently on the board.
Like most state medical boards, members are appointed by the governor. Gov. Greg Abbott, who has a long history of rewarding donors with plum positions on state boards and commissions, has put several big dollar donors on the medical board over the years.
Seven of the 16 current members have given Abbott more than $10,000 since 2013. Zaafran, the board chair, has given close to $100,000.
“There're many other Republicans that I have contributed to and for that matter, there're many Democrats that I've contributed to,” Zaafran said. “But as a board, we're independent.”
Zaafran, a Houston anesthesiologist, said the board is diverse in many ways, including politically, and he pointed to the board’s COVID-19 guidelines, which he said were unpopular among some Republicans.
“If we're getting criticism from both sides, usually that probably means that we're fairly neutral, as much as we possibly can be,” he said. “We try to go by the science, by the facts.”
The agency’s enforcement arm is primarily complaint-driven. Complaints against doctors are assessed by expert panelists in the same speciality, who determine whether the doctor violated the standard of care. The board can then determine what action to take against the doctor, up to and including suspension of their license. That ruling can be appealed through the State Office of Administrative Hearings or district court.
“The only guidance that we can offer or provide is asking our licensees, our physicians to follow what the standard of care is,” Zaafran said. “That standard care is typically not going to be adjudicated unless a complaint comes to us.”
But the board has, at times, offered guidance to doctors proactively, most notably during the COVID-19 pandemic.
“With COVID, they tried to give some guidance and let people know where the safe spaces were as they were making clinical judgments,” said Tim Weitz, former Texas Medical Board general counsel who now defends doctors facing disciplinary issues. “In this instance, I think they’re going to just try to stay out of the political crossfire, no matter who encourages them.”
What role does TMB play in the abortion issue?
Since Texas banned nearly all abortions in summer 2021, dozens of women have come forward to say they were denied medically necessary abortions for their complicated pregnancies. These women say they should have qualified for an abortion under the state’s narrow medical exceptions, but their doctors were too fearful or unclear on the law to perform the procedure.
In the first seven months of 2023, only 34 abortions were performed in Texas. Seth Chandler, a law professor at the University of Houston, said the law incentivizes doctors to delay or deny abortions and hope the patient travels out-of-state or finds another doctor.
“Whereas if they do perform the abortion, they may have a local elected prosecutor look over what's happened and decide to indict, and at that point, the physician’s life is already pretty much ruined,” he said. “Which would you choose?”
In early December, 31-year-old Kate Cox filed a lawsuit, asking the court to allow her to terminate her nonviable pregnancy. She had been to the emergency room four times in the last month due to pregnancy complications, and had found an OB/GYN willing to perform the procedure if a judge signed off on it.
A Travis County district judge granted the abortion, but the Texas Supreme Court overturned that ruling, saying Cox did not qualify. In the ruling, the court said doctors do not need to “wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible.” Nor does the doctor need to consult with other doctors to proceed.
“Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day,” the justices wrote.
Dr. Rick Snyder, president of the Texas Medical Association, said this ruling added more confusion for doctors.
“The Texas Supreme Court said over and over, this is up to physicians to make a decision,” Snyder said. “They’re saying, this is in the hands of the physicians, but they also said this doctor does not have the right to perform an abortion. They stopped Ms. Cox’s physician.”
While the court asked the medical board to step in and clarify the law, Snyder said that type of nonbinding guidance won’t be enough to reassure most OB/GYNs handling these complicated cases.
“It might help build a defense if you find yourself in court, but we don't want to find ourselves in court,” Snyder said. “You might prevail, and this might be helpful in that, but you still have to take the time and the cost of getting a lawyer to defend yourself.”
Chandler, the UH law professor, said medical board guidance could serve as a deterrent for prosecutors considering whether to bring a case against a doctor, if the case is clearly within parameters the agency has laid out.
“It does not eliminate all possible risk for the doctor, but I'm not sure that's possible,” Chandler said. “What I think is sensible is to get rid of as much of the unnecessary risk as possible that exists as a result of the Texas laws today.”
Snyder would prefer to see the Legislature step in and clarify the laws. He pointed to HB 3058, a new law that established an affirmative defense for doctors who perform an abortion on a patient with an ectopic pregnancy or a previable premature rupture of membranes, as a step in the right direction.
But it’ll be more than a year until the Legislature is back in regular session. The Texas Supreme Court is still considering a challenge to the medical exception in Zurawski v. Texas, but Chandler expects that ruling to offer as little clarity to doctors as the Cox ruling did.
With the Texas Medical Board not yet offering any guidance either, what options remain open to Texans facing complicated pregnancies, and their doctors?
“Frequent flier miles,” Chandler said.
Disclosure: Texas Medical Association and University of Houston have been financial supporters 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.