Texas Medical Board breaks silence, agrees to issue guidance around abortion ban exceptions

Breaking months of silence, the Texas Medical Board next week will begin a 30-day rulemaking process to craft guidance around legal exceptions to the state's near-total abortion ban during its public meeting March 22. The board agreed Wednesday night to issue its guidance in response to a petition that two Austin lobbyists submitted in January, according to an email obtained by the American-Statesman.

The board's action comes after almost two years of calls by Texas OB-GYNs, pregnant patients, lawmakers, Gov. Greg Abbott and the state's highest court for the agency to issue guidelines about cases in which doctors can legally terminate pregnancies.

Steve and Amy Bresnen, married attorneys who are Capitol lobbyists, filed a petition with the medical board Jan. 18 asking it to create rules to "ensure critical care to pregnant females and implement medical emergency exceptions to laws that otherwise punish those who perform abortions." The lawyers filed the request under a Texas law that allows "interested parties" to propose rules to regulatory agencies.

Texas' abortion ban allows physicians to terminate a pregnancy only when a mother's life is at risk, making no exception for rape, incest or fatal fetal diagnoses.

The Bresnens said they are "very pleased and even a little surprised" that the medical board will begin drafting guidelines, though the rules could be far from those the couple is proposing. Medical board attorney Scott Freshour wrote to the Bresnens that the group would consider "alternate draft language" at the March 22 meeting and allow for changes to be made after a public comment process, as per an email he sent to them Wednesday night.

"If it eases anxiety for expectant mothers, and women who want to be pregnant and others, and I think this is actually a pro-life step forward," Amy Bresnen told the Statesman on Thursday. "Because we want women to feel comfortable having babies in Texas."

The move to begin rulemaking marks a significant change of course for the medical board. Chair Dr. Sherif Zaafran told the Texas Tribune in December that the board would hold off on "getting involved" in issues around the abortion ban while litigation is ongoing. The board is a defendant in a case pending before the state Supreme Court, Zurawski v. Texas — a lawsuit brought by 20 Texas women who were denied abortions despite facing severe pregnancy complications.

"It's a 180-degree attitudinal shift," Amy Bresnen said Thursday.

But the board has mulled issuing additional guidance on exceptions since the state's "trigger law" banning nearly all abortions went into effect in August 2022, Freshour said in his email to the Bresnens.

"TMB has been considering rulemaking options since the statute went into effect," he wrote.

Freshour and Zaafran did not immediately respond to Statesman requests for comment Thursday. Medical board spokesperson Jarrett Schneider confirmed in an email to the Statesman on Thursday that the group would begin its rulemaking process.

More: Biden denounces Texas abortion ban in State of the Union, with Kate Cox, Amanda Zurawski as guests

'Do more to provide guidance' on Texas abortion exceptions

In December, the Texas Supreme Court called on the medical board to "do more to provide guidance" amid the confusion over abortion exceptions, saying it had the legal authority to do so. The statement was part of a ruling in which the court rejected Dallas resident Kate Cox's request to terminate a pregnancy with a fatal fetal diagnosis.

"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 justices wrote in their opinion.

The Bresnens' proposal suggests ways in which the medical board could incorporate the Supreme Court's interpretation of the state's abortion laws into its guidance. For example, the Bresnens proposed including that the death of a pregnant patient "need not be imminent" to make her eligible to terminate a pregnancy, as the justices wrote in their opinion.

They also suggest conditions that could be included as justifying medically necessary abortions if they accompany risk of death, including sepsis, pre-eclampsia, embolism, liver disease, hypertension and cancer.

More: How Amanda Zurawski has fought for women's reproductive health care in Texas

Several of these conditions were present in the case of a Texas woman who in 2022 died in Luling, about 50 miles south of Austin, during a difficult pregnancy, as reported in January by the New Yorker.

The Bresnens' proposed rules also include a provision that would require a person to meet certain standards of evidence before they can sue a doctor for an alleged violation of Texas abortion laws.

"This is only the first step in the rulemaking process," Freshour wrote in his email. "We will consider all comments received and make any changes deemed necessary."

'Cautious optimism' after Texas Medical Board agrees to set abortion exception guidelines

The medical board's decision to begin drafting guidelines for abortion exceptions comes after women's health advocates have spent months fighting for that clarity.

The 20 women and two OB-GYNs who are plaintiffs in the Zurawski lawsuit against the state and medical board, which was filed by the Center for Reproductive Rights, allege that the lack of guidance around the vague language and “non-medical terminology” in Texas' abortion bans leaves doctors unable or unwilling to terminate pregnancies, forcing patients to seek treatment out of state or wait until after their lives are in danger.

Amanda Zurawski, who joined the case after a near-death experience following a previable preterm rupture of membranes, said the board's decision is "encouraging." But she also said the state still needs to address issues that have arisen since Senate Bill 8, which bans abortion after cardiac activity can be detected, usually around six weeks of pregnancy, went into effect in September 2021.

"It is encouraging that the state of Texas is finally addressing the health care crisis it created with its abortion bans," she told the Statesman on Thursday. "Meanwhile, we are still waiting for the Texas Supreme Court to recognize the harm that has already been done and provide pregnant Texans with the protections we have asked for."

The state Supreme Court is expected to issue a ruling in Zurawski v. Texas by the end of the term in June.

Kaitlyn Kash, another plaintiff in the suit, told the Statesman that the news has made her "cautiously optimistic for the first time in a while," though it doesn't resolve the "dehumanization" she feels women seeking reproductive health care face in Texas.

Texas Impact, an interfaith group that advocates for policy change in Texas, has collected more than 1,200 signatures on a March 7 petition asking the medical board to "clarify the confusing 'medical emergency' exception to Texas' abortion ban … so doctors can treat pregnant patients without fear."

The group's director, Bee Moorhead, said the board's March 22 meeting will provide a rare opportunity for Texans to come together to discuss a divisive issue.

"This is that opportunity for the whole state of Texas to say, 'I love you. I don't know if we agree, but I want to talk with you about it,'" she said, adding the she's hopeful the board's rules can make a difference, even though the law will not change.

A board meeting agenda posted on the Texas Secretary of State's website Thursday lists "Consideration and possible action on rules regarding exceptions to the ban on abortions" as the 14th item to be considered March 22. The meeting is open to the public and anyone can attend in person at 1801 Congress Ave, #9.900, or via videoconference, starting at 8 a.m. A public comment period will also take place during the meeting.

More: Texas teens need parental consent to access birth control, federal appeals court rules

The Bresnens' full petition to the TMB is below.

This article originally appeared on Austin American-Statesman: Texas Medical Board agrees to clarify abortion ban exceptions