To comprehend just how dangerous it now is to become pregnant in the state of Texas, a few basic facts need to be understood.
As a result of the Supreme Court’s 2022 decision to overturn Roe v. Wade, and thanks to the state’s Republican legislature, abortion is banned in Texas. The only narrow exceptions to that ban are to save the life or prevent “substantial impairment of major bodily function” of a pregnant patient. Accordingly, doctors need to be extraordinarily careful to determine whether the patient will likely or probably die if an abortion is not performed.
If they’re wrong, then the abortion is illegal, subjecting the doctor to criminal penalties of up to 99 years in prison, a $100,000 fine, and the loss of their medical license. Even if the fetus itself has a life-threatening, potentially fatal abnormality, Texas law does not allow an abortion to be performed unless the pregnant person will also likely die, a restriction that was made vividly clear in the highly publicized case of Kate Cox, who was refused treatment after four ER visits even though continuing her pregnancy demonstrably jeopardized her own health and may have ended her hopes to become pregnant again.
So pregnancy itself—any pregnancy—is now a potentially harrowing, even terrifying experience for patients in Texas. But it’s equally terrifying for the doctors who treat them, just in a different way.
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As reported by Maria Mendez at the Texas Tribune, miscarriages and ectopic pregnancies are not considered “abortions” under state law. However, as she reports, those limited “exceptions”—one in 10 pregnancies results in a miscarriage, for example—cause understandable confusion and second-guessing in practice, as doctors must weigh the certainty of their diagnosis against the fact that their own lives and careers will be forfeit if they are wrong. One error in diagnosis and they quite literally could spend the rest of their lives navigating hardened criminals in a state prison, leaving their families devastated. No “malpractice” insurance coverage will save them, either.
This has led to several reported instances of patients who may be experiencing potential complications with their pregnancies being turned away from Texas emergency rooms, as doctors simply are afraid to treat them. In circumstances where the patient’s pregnancy is neither ectopic nor obviously indicative of miscarriage, that pervasive fear among doctors and nurses puts them in an impossible position: It becomes the sole factor dictating their course of treatment.
The Texas Medical Board, a group of physicians and non-physicians appointed by the governor, has refused to offer a specific list of those life threatening exceptions to the overall ban that would allow an abortion to be performed, claiming it is beyond their authority to do so.
One might think it impossible to make this Kafka-esque situation for pregnant patients and their doctors any worse. But now the same Texas Medical Board has done exactly that. Responding to a petition from the physicians’ lobby on how to treat such patients, it has issued tentative guidance that, subject to its approval in June, may result in Texas doctors refusing to treat such pregnancies at all.
“Doctors who perform life-saving abortions may soon be required to document whether they first tried to transfer the patient to another facility to avoid terminating the pregnancy, a move some say goes beyond the language of the law,” Eleanor Klibanoff wrote for the Texas Tribune.
The worry is that this requirement deters doctors even further from performing abortions:
“This creates even more uncertainty for doctors who were already concerned,” said Rachael Gearing, a Dallas health care lawyer who represents OB/GYN clinics. “It’s basically saying, ‘Well, you should have passed your patient off to someone else who would have held out longer and wouldn’t have done the abortion.’”
Specifically, the guidance from the Texas Medical Board requires doctors to document whether there was sufficient “time to transfer the patient to another facility to prevent an abortion.” Put another way, it requires doctors to show that there was inadequate time to do otherwise. So any doctor who feels it’s necessary to perform an abortion to save a patient’s life now must ensure that they’ve made every conceivable attempt to transfer them to another facility that “might” determine that performing that abortion is actually unnecessary. If doctors cannot prove this through such documentation, they’re marched off to jail, potentially for the rest of their lives.
As Klibanoff notes, the effect of this guidance, if approved, will be felt in multiple ways. First, rural doctors and hospitals with limited resources will feel compelled to automatically transfer their patients to facilities with more resources—and more doctors—able to make such a determination. But once those patients are transferred, the doctors at those wealthier (mostly urban-based) medical facilities will face the same problem. Under this guidance, they will still be forced to document their efforts to find a facility that might determine an abortion is unnecessary. And even if they can find one, and can transport the pregnant patient to it, the patients themselves are put at further risk by the delay. After all, they wouldn’t be in the hospital if their condition wasn’t life threatening to begin with.
Underlying this whole scheme is the pervasive and constant threat of prosecution by the state. As all doctors and lawyers know, it is a simple matter for a prosecutor to find an expert willing to testify to exactly the way the lawyer wants. So, as a practical matter, any physician’s judgment can be challenged by a prosecutor who employs the right expert to refute that determination. Even if a doctor concludes that an immediate abortion was absolutely necessary, a prosecutor can always find an expert willing to say that there was more time for that doctor to search for an alternative. And if a jury believes that expert, it’s off to prison and financial ruin for the doctor.
Klibanoff interviewed physicians for her article who confirmed just how perverse this guidance actually is:
“How can a physician feel protected enough to provide good medical care when the ultimate decision is going to be made by the court, and they may not support the physician?” said Dr. Todd Ivey, a Houston OB/GYN and officer with the Texas chapter of the American College of Obstetricians and Gynecologists. “And then suddenly, you’re subject to criminal and civil liabilities?”
Attorneys for the physicians who had sought the board’s guidance noted that effecting such transfers of patients in itself would constitute treatment outside the normal and reasonable scope of medical care. Asked to clarify how its guidance would be interpreted, the spokesperson for the Texas Medical Board confirmed that the intent was not to “second-guess” doctors, but that the board had “no control” of whether a politically motivated district attorney, for example, would be so forgiving.
As Klibanoff observes, this guidance comes while Texas officials are arguing that the federal Emergency Medical Treatment & Labor Act, known as EMTALA, requiring that doctors and hospitals provide emergency stabilizing care, including necessary termination of pregnancy, to patients whose health is at risk should be subordinate to Texas law, which only permits abortion care when the patient’s life is threatened. This provides yet another bewildering conundrum for doctors attempting to treat patients within the state. Should they comply with the federal law and risk prison, or should they allow their pregnant patients to deteriorate until death is a virtual certainty, as Texas has told them they must do?
These questions might provide interesting legal fodder for those removed from the actual experience of treating sick or dying patients—such as the members of the U.S. Supreme Court, for example—but in reality, they suggest a choice that unfortunately many physicians will feel compelled to make. They can either practice medicine the way they’ve been taught, regardless of the personal consequences to themselves; they can try their best to comply with the arbitrary edicts of the Republican state legislature and their own hapless medical board and still risk prison, or they can choose to leave the state of Texas and practice elsewhere.
None of these options are good for doctors, and it’s not that hard to understand why many of them—particularly OBGYNs—would simply choose not to treat such patients at all, just as ER physicians are doing, in Texas and other states where such draconian laws are enforced. But the real victims are Texas citizens, forced to cope with a medical system that has suddenly added an extra layer of burden and stress on their health and well-being, all for the sake of satisfying a fanatical and misogynist Republican state legislature.
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