Texas Medical Board Publishes Proposed Rules Re: Exceptions to Texas's Abortion Ban

It took a strongly worded "suggestion" from the Texas Supreme Court (in its "know-nothing" opinion in the Kate Cox case [HealthLawBlog 12/12/23], but the TMB has finally published a proposed rule that provides some detail about the medical exceptions to the state's ban on abortions.

• Notice and Statement of TMB Chair
• Proposed Rule Amendment
• Official Form for Submission of Public Comments (optional but preferred method)

Most of the proposed rule is a cut-and-paste job, providing definitions of key terms such as:

1. abortion (copied from the Abortion Facilities Licensing law)
2. ectopic pregnancy (same)
3. reasonable medical judgment (copied from one of statutory bans on abortion)
4. medical emergency (same)
5. major bodily function (Texas Labor Code)

For 1, 2, and 5, the proposed rule would make clear that these definitions in other Texas codes apply to the medical exceptions to the abortion bans, which is guidance of a sort.

The remainder of the proposed rule describes the documentation that must be completed if an abortion is going to be performed when one of the exceptions applies as well as "the procedures that the Board will utilize in the event a complaint is received."

Biden's State of the Union Address: 13 Health Care Take-aways

Becker's Hospital Review takes a look at "13 healthcare takeaways" from President Biden's State of the Union address last evening. They include:

1. Expanding Medicare's drug price negotiation scope
2. Limiting drug costs
3. Expanding rebate requirement
4. Closing Medicaid coverage gap [for 10 states, including Texas, that haven't expanded eligibility]
5. Capping the cost of insulin
6. Abortion access
7. COVID-19
8. Affordable Care Act
9. Women's health
10. Taxes
11. Gun violence
12. PACT Act [Resources for Veterans]
13. ARPA-H (Advanced Research Projects Agency for Health ) 

JAMA On-line: Scorn for Approach of Texas Supreme Court and AG in Cases Involving Exceptions to Abortion Ban

In an excellent on-line (and free) commentary in JAMA (Jan. 22, 2024), three Harvard authors ask the question: "Whose Responsibility Is It to Define Exceptions in Abortion Bans?" (Disclosure: One of the authors, Louise King, M.D., J.D., is a friend and former colleague.)

The context for this question is not surprising:

Two Texas court cases were filed in late 2023 requesting clarification of the scope of the life exception. In the first case, In re State of Texas, the Texas Supreme Court indicated that clinicians or the Texas Medical Board have responsibility for defining that exception. In the second case, State [of Texas] v Zurawski, the Texas attorney general suggested during oral arguments that the scope would be defined through medical malpractice litigation.

In short, both the Texas Supreme Court and the AG punted on the essential and inescapable issue of the scope of "life exception" to Texas's abortion ban.

Is that a problem?

At first glance, the Texas Supreme Court and attorney general may seem to defer to the expertise of clinicians and the medical system for when abortions are necessary to save a patient’s life. But upon closer analysis, these proposed ways to define the exception’s scope are neither workable nor constitutional. Putting the burden of defining a crime on the person who may commit it violates the US Constitution. Demanding that patients be injured and sue for malpractice to clarify a criminal statute is beyond draconian.

Legislating medical care means clinicians could risk prosecution if they act according to their ethics and training and follow the standard of care. But if they decline to provide care out of fear of legal consequences, they risk injuring a patient and facing a potential malpractice claim. It is for these very reasons that professional societies like the American College of Obstetricians and Gynecologists and the American Medical Association argue strongly against all legislation that interferes with the patient-clinician relationship.2 Texas and other states that criminalize abortion should consider the tremendously harmful effect that comes from interfering in clinical decision-making. 

This short but compelling commentary is worth reading in its entirety. It offers a fine illustration of the hall of mirrors created by the Texas legislature, Supreme Court, and Attorney General. 

 

Ruth Marcus: Calling Out the Texas Supreme Court for its Opinion in the Kate Cox Case

Ruth Marcus is one of the most acute observers of political cultural and political life in this country. Now add legal commentary to her toolkit (she's a 1984 graduate of Harvard Law School). There's no better example than her column in the Washington Post eviscerating the Texas Supreme Court's opinion in the Kate Cox case. There's a paywall, but there may also be a quota of free articles that non-subscribers can tap into. If not, here are a few highlights:

• "Women of Texas, now you know: The state’s abortion law will not protect you in the case of a medical emergency. Not only will the state’s attorney general come after you, the all-Republican, Texas Supreme Court will contort itself to find that your situation doesn’t constitute an emergency that would allow an abortion to proceed. Never mind what your doctors say — courts know best, even as they purport to be deferring to medical judgment."
• "The court’s brief ruling — seven pages almost entirely devoid of legal reasoning — is a masterpiece of intellectual dishonesty masquerading as judicial deference."
• "[T]he craft of judging is about applying the law to specific facts, and here is where the Texas justices fell woefully short. The court’s opinion never explains why it is not a reasonable medical judgment that abortion is advisable in this situation, in which Cox would otherwise be forced to continue with a doomed pregnancy and incur the risk of a repeat C-section or uterine rupture from vaginal delivery. It acts as if Cox’s obstetrician hadn’t determined that an abortion would be in her best medical interest, when in fact she had found just that. It all but writes the provision about impairment of a major bodily function out of the law."
• "Theoretical exceptions are cold comfort to real women in excruciating circumstances, and without hope of getting the care they desperately need."

Harsh but fair. 

Kaiser: Who Decides When a Patient Qualifies for an Abortion Ban Exception? Doctors vs. the Courts

 Here's a thoughtful brief from the Kaiser Family Foundation on abortion-ban exceptions around the country.

It starts with a quick summary of the Texas Supreme Court's opinion in the Kate Cox case and follows with some observations that somehow escaped the attention of Texas's high court:

• "The case in Texas highlights the impossible situation that many doctors and patients find themselves in when faced with a pregnancy that may qualify for an exception."
• "[I]f doctors are prosecuted for providing abortions under an exception, the courts will nonetheless end up determining whether the abortions qualified for an exception and physicians will still be vulnerable to having their judgment second-guessed by judges and juries. Unable to get a determination from a court ahead of providing care, yet vulnerable to prosecution after providing care, doctors and their patients caught in a 'Catch-22.' In this case, Ms. Cox was reportedly able to leave the state to receive the abortion care her doctor believed she needed, but others may not have the resources to travel out of state to get medically-indicated care."
• "All 20 states with abortion and gestation bans currently in effect contain exceptions to 'prevent the death' or 'preserve the life' of the pregnant person. Like Texas, these exceptions are not clear how much risk of death or how close to death a pregnant patient may need to be for the exception to apply, and the determination is not explicitly up to the physician treating the pregnant patient."
• "The Texas abortion ban specifies that the physician must determine that the abortion is necessary based on their 'reasonable medical judgement.' This standard leaves physicians in a legally vulnerable situation and understandably reluctant to certify a pregnancy as qualifying for a life or health exception. This reluctance stems from the concern of being found guilty of violating the law if the court relies on the testimony of other medical experts that say that the treating physician didn’t meet the standard for “'reasonable medical judgement.'"

The brief includes an interactive that shows the exceptions for life, health, rape/incest, and fatal fetal anomalies in states that have them:

Texas Supreme Court Puts an Exclamation Point on Kate Cox's Doomed Quest for Reproductive Health Care in Texas

Late yesterday (12/11) the Supreme Court of Texas issued a seven-page per curiam opinion that reversed the trial court's order in the action Kate Cox brought against the State of Texas. 

The trial court enjoined state officials from enforcing statutory abortion prohibitions based upon the "good faith belief" of Ms. Cox's physician that "continuing the pregnancy puts her at high risk for severe complications threatening her life and future fertility, including uterine rupture and hysterectomy" [Complaint ¶ 1]. A reasonable interpretation of this language would conclude that Ms. Cox's pregnancy "places [her] at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced," the statutory exception to Texas's abortion prohibition., TEX. HEALTH & SAFETY CODE § 170A.002(b)(2). That is not the Supreme Court's interpretation.

Ms. Cox's physician's "good faith belief" is presumably based upon two subsidiary considerations: [1] a medical conclusion based upon reasonable medical judgment combined with [2] uncertainty as to the scope of the vague language of the statutory exception. There is no other way to read ¶¶ 138-139 of the Complaint:

138. Dr. Karsan has met Ms. Cox, reviewed her medical records, and believes in good faith, exercising her best medical judgment, that a D&E abortion is medically recommended for Ms. Cox. 

139. It is also Dr. Karsan’s good faith belief and medical recommendation that the Emergent Medical Condition Exception to Texas’s abortion bans and laws permits an abortion in Ms. Cox’s circumstances, as Ms. Cox has a life-threatening physical condition aggravated by, caused by, or arising from her current pregnancy that places her at risk of death or poses a serious risk of substantial impairment of her reproductive functions if a D&E abortion is not performed. 

[emphasis added]

This was not good enough for the Supreme Court, though:

Dr. Karsan did not assert that Ms. Cox has a “life-threatening physical condition” or that, in Dr. Karsan’s reasonable medical judgment, an abortion is necessary because Ms. Cox has the type of condition the exception requires. . . .  The exception requires a doctor to decide whether Ms. Cox’s difficulties pose such risks [i.e., to the pregnant woman's life or substantial bodily function].  Dr. Karsan asked a court to pre-authorize the abortion yet she could not, or at least did not, attest to the court that Ms. Cox’s condition poses the risks the exception requires.    

Does the outcome in this case really turn on a physician's attestation that she exercised reasonable medical judgment? If the verified petition in this case doesn't meet that standard, does the Court require three "magic words" to establish a woman's right to necessary medical care? Is there a difference between "best medical judgment" and "reasonable medical judgment"? The Court writes that "[a]  pregnant woman does not need a court order" to get an abortion in Texas. But if the scope of the statutory exception is uncertain, does the Court seriously expect physicians to risk a 99-year prison sentence and a $100,000 fine without first obtaining a court's authorization? 

And on the vagueness argument, the Court concludes:

The Texas Medical Board, however, can do more to provide guidance in response to any confusion that currently prevails.  Each of the three branches of government has a distinct role, and 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 Legislature pretty clearly intended the in terrorem effect that SB 8 and post-Dobbs enactments have produced. And in terrorem effects work best when the law is vague, its application is potentially broad, and the penalties for being wrong are draconian. Unfortunately, the Court's opinion in the Cox case -- whether wittingly or not -- plays into this cynical strategy. 

Kate Cox Leaves Texas to Obtain an Abortion

I put up a series of posts last week to illustrate the tortuous path taken by Kate Cox in order to terminate a pregnancy that posed a threat to her health and future reproductive prospects. By the end of the week, the Texas Attorney General was threatening civil and criminal action against her doctor and any hospital that allowed the procedure to be performed there AND the Texas Supreme Court stayed the order of a Texas trial judge that was based on the judge's conclusion that Ms. Cox fell within the statutory exception to Texas's abortion ban.

As reported this afternoon by the Washington Post, the New York Times, NBC, ABC, and the Guardian, Ms. Cox has left the state to obtain the abortion that has so far been denied her in her home state: 

“Kate desperately wanted to be able to get care where she lives and recover at home surrounded by family,” Nancy Northup, the chief executive for the Center for Reproductive Rights, which was representing Ms. Cox in her case, said in a statement on X. “While Kate had the ability to leave the state, most people do not, and a situation like this could be a death sentence.”

Ms. Cox describes last week's legal developments as "hellish." It's a fit description of a society that meets a very human loss such as hers with motions, briefs, opinions, orders, and sabre-rattling by an indicted Attorney General. It reminds me of Grant Gilmore's great quote from The Ages of American Law (1977):

Law reflects, but in no sense determines the moral worth of a society…. The better the society, the less law there will be. In Heaven, there will be no law, and the lion will lie down with the lamb…. The worse the society, the more law there will be. In Hell, there will be nothing but law, and due process will be meticulously observed.

Unfortunately, last week was Kate Cox's introduction to hell. 

Texas Supreme Court Stays Trial Court's Abortion Order

The court entered an "administrative stay" pending review of the TxAG's request for mandamus in the Cox case. In almost any other case, this would be a routine, even benign, development. In this case, though, it's far from routine or benign.

• Kate Cox is entering her 21st week of pregnancy. She's not far from her third trimester, when  termination of a pregnancy will be considered a "late term" abortion and nearly impossible to obtain.
  
  
• Every delay increases the risk to Kate Cox's health, including her ability to have a child in the future. There is no such thing as "maintaining the status quo" in this case.
  
  
• This case vividly illustrated the human cost of a GOP-dominated legislature and Republican AG torning abortion into a political football. One can only hope that the all-GOP Supreme Court sees this case as the trial judge did . . . and without delay.

Texas Case Highlights the Human Cost of Texas's Abortion Ban

After the Supreme Court's Dobbs decision, much was written about the human suffering that will result once states ban or seriously restrict abortion services. The recent Austin case put four faces on that suffering through the testimony of four women plaintiffs. The trial judge's opinion alluded to the nature of their testimony but didn't provide details.  A recent KFF Health News article (August 7) highlighted their testimony and illuminated the risk to women's health as a result of Texas's abortion ban. 

The article should be required reading for members of the legislature and Governor Abbott, but I'm not holding my breath.