Texas Medical Board Punts (Again) on Emergency Exception to Abortion Ban

This past Friday, June 21, the TMB issued a final rule "[that amends] 22 TAC 165 by adding . . . section[s] 165.7-165.9 concerning Exceptions to the Abortion Ban." 

Previous posts to this blog have commented on the vague and generally unhelpful nature of the rule as it was proposed by the TMB (here and here). After receiving what the TMB president describes as "hundreds of comments from private citizens, physicians, professional associations and private organizations," the Board's efforts have produced a final rule that is virtually identical to the proposed rule.

Doctors are left to determine what constitutes an "emergency condition" based upon reasonable medical judgment. Considering the criminal penalties for violating the abortion ban (a massive fine and up to life in prison), as well as the possibility that two (or more) doctors will disagree about diagnoses and treatments, this standard will predictably cause physicians in a number of situations to be overly cautious about performing an abortion.

Here's one of those situations: A pregnant woman is determined to have a medical condition that does not yet threaten her life or an injury to a major bodily function. But, if the pregnancy isn't terminated, the condition will predictably worsen and the woman will eventually be on death's doorstep. Does it make sense to wait until the last possible moment to intervene? But would the earlier version of this condition constitute a "medical emergency"? 

In the Cox case earlier this year, the Texas Supreme Court rejected a trial court's order prohibiting the Attorney General from enforcing the abortion ban against Kate Cox and her physician. The trial court's order was based upon the attending physician's "good faith belief [that] continuing the pregnancy puts her at high risk for severe complications threatening her life and future fertility, including uterine rupture and hysterectomy." The court faulted (implicitly) plaintiff's counsel for not eliciting a statement from the physician that her opinion was based upon reasonable medical judgment. Despite this narrow reading of the law, the court did offer some reasonably helpful commentary for future cases:

• Waiting until death is imminent: "[T]he statute does not require “imminence” or, as Ms. Cox’s lawyer characterized the State’s position, that a patient be “about to die before a doctor can rely on the exception.”  The exception does not hold a doctor to medical certainty, nor does it cover only adverse results that will happen immediately absent an abortion, nor does it ask the doctor to wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible. (emphasis added) 
• Risk of liability based on a different physician's contrary opinion: "The exception does not mandate that a doctor in a true emergency await consultation with other doctors who may not be available.  Rather, the exception is predicated on a doctor’s acting within the zone of reasonable medical judgment, which is what doctors do every day.  An exercise of reasonable medical judgment does not mean that every doctor would reach the same conclusion. (emphasis added)   

One mystery is why the medical board didn't put these two issues to rest once and for all by explicitly including the Supreme Court's language. Instead, the new rule ends with a Delphic comment promising not to discipline a physician who exercises reasonable medical judgment, followed by a cross-reference to § 74.552 of the Texas Civil Practice and Remedies Code, which adds absolutely nothing to our understanding of that outcome-determinative phrase.

This is really the best the Texas Medical Board can do?