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 to issue its guidance in response to a petition that two Austin lobbyists submitted in January.

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 terminate pregnancies to save a mother's life.

Steve and Amy Bresnen, a married couple of Capitol lobbyists, filed the 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 petition the medical board to issue rules about which cases fall under the exception.

"People are going to die under these circumstances," Steve Bresnen told the American-Statesman in January. "We just decided that somebody needed to do something."

Texas has banned abortions almost entirely since August 2022, after the U.S. Supreme Court dismantled Roe v. Wade, the landmark case that established federal protections for abortions. Texas' abortion ban allows physicians to terminate pregnancies only when a mother's life is at risk, making no exception for rape, incest or fatal fetal diagnoses.

The move to grant the Bresnens' request seems to signal a change of course for the medical board. Board Chair Dr. Sharif Zaafran told the Texas Tribune in December that the group would hold off on "getting involved" in issues around the abortion ban while challenges to law get settled in court. The Texas Supreme Court is expected to decide a suit filed challenging the ban two years ago by 20 women and two OB-GYNs.

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But the board has mulled issuing additional guidance on exceptions since the state's "trigger law" banning abortions went into effect in August 2022, Scott Freshour, the medical board's senior counsel, wrote in an email to the Bresnens, which was obtained by the Statesman.

"TMB has been considering rulemaking options since the statute went into effect and will proceed with rulemaking," Freshour wrote in the email sent Wednesday night. "This is only the first step in the rulemaking process. TMB will consider all comments received and make any changes deemed necessary."

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.

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Bresnen and his wife, who is of childbearing age, are concerned about the lack of legal guidance to doctors about exceptions to the state's abortion ban, they told the Statesman in January. Since 2021, numerous women have alleged that uncertainty around the bans — which at the time prohibited abortions once cardiac activity could be detected, or about six weeks of pregnancy — made doctors unwilling to provide emergency care until patients were near death, or until they were forced to go out of state to prevent serious health issues.

In December, the Texas Supreme Court called on the medical board to "do more to provide guidance" amid the confusion, 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 Supreme Court will rule in a lawsuit pending before it against the board and state over the lack of guidance on the abortion ban by the end of the term in June.

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 the 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.

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 a January New Yorker story.

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 be held during the meeting.

This is a developing story. Check back for updates.

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