Texas Republicans seek to clarify when doctors can intervene under abortion bans

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Texas Republicans in the Senate have filed a bill that aims to make it more clear when a doctor can intervene to save a pregnant patient’s life, despite the state’s near-total abortion ban. The bill does not expand abortion access or change the exceptions, but rather aims to clarify the existing law.

Sen. Bryan Hughes, author of one of the state’s abortion bans, filed Senate Bill 31, called the “Life of the Mother Act.” The bill is one of Lt. Gov. Dan Patrick’s priorities. A matching bill has been filed in the house by Rep. Charlie Geren, a Republican from Fort Worth.

Texas’ abortion laws have an exception to save the life of the pregnant patient. But since the laws went into effect, doctors have said the vague language and strict penalties leave them uncertain of when they are actually free to intervene. Despite lawsuits, and court rulings, and guidance from the Texas Medical Board, the confusion and fear persists for doctors and the lawyers who are advising them.

Until recently, Texas Republicans maintained that the laws are clear. Hughes wrote an op-ed in the Houston Chronicle, titled, “I wrote Texas' abortion law. It's plenty clear about medical emergencies.” Anti-abortion groups argue that because some abortions are being performed each month, the law is working the way it was intended.

But at least three women have died, and dozens have reported medical care delayed or denied due to their doctors’ hesitation to act. In January, Patrick said he was open to clarifying the laws “so that doctors are not in fear of being penalized if they think the life of the mother is at risk.” Hughes echoed the sentiment and agreed to carry the bill.

The bill reiterates existing law that says doctors can remove an ectopic pregnancy or the remains of a fetus after a miscarriage. It also matches the definition of medical emergency to existing state law and clarifies that a doctor or a lawyer can talk with a patient about a medically necessary abortion without it being considered “aiding and abetting.” The bill also clarifies that doctors are not required to delay, alter or withhold life-saving medical treatment to try to preserve the life of the fetus.

The bill would bring into state law previous guidance from the Texas Supreme Court, which ruled that nothing in the law required the medical emergency to be imminent or irreversible before a doctor could intervene. It also proposes continuing education requirements for lawyers and doctors, to better educate them on interpreting and applying these laws.

Texas banned nearly all abortions after six weeks of pregnancy in 2021, with a legal loophole that allowed the state to skirt the protections of Roe v. Wade. After the Supreme Court overturned that 50-year-old precedent in 2022, the state banned abortions from the moment of conception.

A doctor who performs a prohibited abortion can face up to life in prison, fines of $100,000 and the loss of their medical license. Doctors report delaying care until a patient is closer to death, or pursuing procedures that are riskier medically but safer legally because they are unsure how else to proceed. Others say their hospital administrators and lawyers are restricting their ability to fully practice medicine.

The bill is unlikely to satisfy abortion advocates, who would like to see access to the procedure restored more widely, or some doctors who say the state should not be legislating the decisions they make with their patients.

But Democrats and medical organizations are getting on board, seeing SB 31 as a necessary stop-gap measure to ensure pregnant women can get the treatment they need.

“Doctors want to feel safe in providing medical care,” said Dr. Todd Ivey, a Houston OB/GYN who has been outspoken against the laws. “We want to not have to worry about the threats of criminal prosecution and civil liability, and I think this bill really goes a long way to help us with that.”

Ivey’s ideal bill would also allow abortions in cases of lethal fetal anomalies, or for pregnancies resulting from rape and incest, which are common exceptions in other states with abortion bans. But, he’s hopeful this legislation is a starting to point that will help “thaw the chilling effect” that the law has had on doctors and hospital administrators.

Rep. Ann Johnson, a Democrat from Houston, has signed on to HB 44 as a co-author. Last session, she quietly passed a bill with Hughes that created an affirmative defense for doctors who performed an abortion on an ectopic pregnancy, or after a premature membrane rupture. She was prepared to “scratch and claw” her way to more protections for doctors this session, so she’s thrilled to see the public, bipartisan support for this more wide-reaching bill.

“Let me also be clear, I am a Democrat. I am pro-choice. This is not a pro-choice bill,” she said. “This is purely a medical exception bill that deals with pregnancy complication, but it really does, in my view, address the horrific stories that we've been hearing from women who have a pregnancy complication and have had treatment delayed.”

Johnson said she’s had thoughtful conversations with her colleagues across the aisle on this issue and she’s hopeful the bill may move easily through the chambers.

“In a moment of just almost complete political dysfunction, this is a little ray of hope that you can have an overwhelming and bipartisan coalition of people to solve a problem that requires our immediate attention,” she said. “Let’s get this done.”

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