A recent lawsuit filed by a pregnant woman in Texas seeking an abortion because of a fatal fetal diagnosis made national headlines and spotlights the legal labyrinth in which Texas patients and the physicians who care for them now find themselves.
The Texas Medical Association continues to advocate for legislative clarity following the recent passage of related state laws and in the wake of the June 2022 U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and the constitutional right to abortion. This builds on TMA’s earlier advocacy efforts, including during the most recent state legislative session.
In the meantime, TMA President Rick Snyder, MD, laments that some physicians feel unable to fulfill their foremost duties – to their patients in crisis and to the patient-physician relationship – while complying with state laws.
“It’s confusing because the state says there are three bans, which have overlapping and competing and conflicting medical exceptions,” he said.
Legal complexities
First, there are pre-Roe state laws criminalizing abortion, dating as far back as 1854, that were never repealed by the Texas Legislature, according to the Texas State Law Library (tma.tips/TXAbortionLaws). The pre-Roe statutes contain an exception for “saving the life of the mother.”
Post-Dobbs, Texas Attorney General Ken Paxton said such laws were once more prosecutable.
“Although these statutes were unenforceable while Roe was on the books, they are still Texas law,” he wrote in an advisory issued on the same day as the Dobbs ruling on June 21, 2022 (tma.tips/PaxtonAdvisory). “Under these pre-Roe statutes, abortion providers could be criminally liable for providing abortions starting today.”
Second, there’s the Texas Heartbeat Act of 2021, or Senate Bill 8 (tma.tips/SB8). The law bars abortions after the detection of a fetal heartbeat, with a “medical emergency” exception for “life-threatening” conditions arising from pregnancy that place the patient “in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.” Although state officials cannot enforce the law, its provisions allow for enforcement by a private civil cause of action, meaning almost any person can sue others for performing or knowingly aiding and abetting a termination of pregnancy in violation of the law.
Lastly, there’s Texas’ “trigger law,” also passed in 2021, which took effect with – or was triggered by – the Dobbs ruling. That law bans abortions from the point of conception and also has an exception for “life-threatening” conditions arising from pregnancy (tma.tips/TriggerLaw). Health care professionals who perform an abortion in violation of the law face up to a life sentence in prison and a minimum $100,000 fine.
Dr. Snyder says these laws are challenging for physicians to navigate because of their differing exceptions and because they use language that often does not align with clinical terminology.
The laws also are at the heart of an emergency lawsuit filed by Kate Cox on Dec. 5. Ms. Cox sought an abortion after her fetus was diagnosed with trisomy 18, a fatal fetal condition that also threatened her health and fertility, according to the Center for Reproductive Rights, which is representing Ms. Cox (tma.tips/CoxRelease).
A lower Texas court ruled that Ms. Cox qualified for a medical exception under the trigger law and the Heartbeat Act, but a petition by Mr. Paxton sent the case directly to the state Supreme Court. Before the high court issued its ruling, the Center for Reproductive Rights announced Ms. Cox had left the state to access an abortion. Shortly after, the Texas Supreme Court ruled against her, writing in a Dec. 11 opinion that the description of Ms. Cox’s condition in her legal filing did not meet the requirements of the statutory exception (tma.tips/CoxRuling).
Justices also called on the Texas Medical Board (TMB) to provide additional guidance and cited TMB’s ability to request an advisory opinion from the attorney general on the legal effect of such guidance:
“The courts cannot go further by entering into the medical-judgment arena. The Texas Medical Board, however, can do more to provide guidance in response to any confusion that currently prevails.”
As this article went to press, a formal petition had been made asking TMB to weigh in on the matter.
Looking to the legislature
For Dr. Snyder, the ruling raises more questions than provides answers, which he says must come through new legislation.
“Even if the Texas Medical Board came out with guidance, it’s not clear how helpful a defense it would provide when a physician is in court, and we want proactive protections so we don’t have to find ourselves in court,” he said. “We need clarity, but we want legislative clarity.”
TMB President Sherif Zaafran, MD, told the Texas Tribune in December that the board won’t issue guidance at least until other court cases related to Texas’ abortion bans are adjudicated (tma.tips/TMBTribune). He also seems to agree with Dr. Snyder on the limitations of such guidance.
“I’m not sure how helpful it would be one way or the other,” he told Dallas television news station WFAA later that same month (tma.tips/TMBWFAA). “In the past, when we issue guidance, not following that guidance didn’t necessarily mean that you could be prosecuted in courts still.”
The Texas Legislature won’t meet again until 2025, meaning Texas physicians and their patients likely will have to wait for such clarity.
When that happens, TMA has something to work from.
During the 2023 regular session, the association worked with state lawmakers on the passage of House Bill 3058, which provides physicians with some legal defenses under Texas’ trigger law when treating ectopic pregnancy or previable premature rupture of membranes, two potentially life-threatening complications. (See “Patient Care Protected: TMA Secures Big Legislative Wins With a New Strategy,” August 2023 Texas Medicine, pages 22-32, www.texmed.org/PatientCareProtected.)
Dr. Snyder says HB 3058 is a start for future legislation that could clarify what qualifies as an emergency medical exception under the state’s abortion bans. Physicians need legislative support to know they can exercise medical judgment without fear of prosecution when a mother’s life or future fertility is at risk.
“We’ve already done it once,” he said. “We need to expand upon that.”
In the interim, Dr. Snyder continues to meet with TMA members across the state, many of whom would like to see legislation that includes medical exceptions for the status of the fetus, which would have made a difference in Ms. Cox’s case.
“If the fetus has certain catastrophic, nonviable conditions, there should be exceptions,” Dr. Snyder said. “That’s what I’m hearing.”
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This article includes general information on recent developments to the legal framework governing abortions in Texas. It does not address every aspect of these developments, nor how they would interact with each other when applied to a particular situation. It also does not address the extensive legal framework of Texas laws on abortion that existed prior to the recent developments. Due to the complexity and evolving nature of the law in this area, and potential criminal, civil, and administrative liability for violating these laws, individuals should consult with their own retained counsel for legal advice relating to abortions.