TEXAS, USA — Editor's note: This article was originally published in the Texas Tribune here.
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.
Health lawyers and doctors worry this proposed requirement further disincentivizes doctors from performing medically necessary, but legally risky, 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.’”
Texas’ laws allow abortions to save a patient’s life, but doctors have struggled to apply that exception in practice, especially when faced with up to life in prison, fines and the loss of their medical license.
After pressure from the Texas Supreme Court and an official petition, the Texas Medical Board issued guidance in March laying out how the licensing agency would investigate complaints of prohibited abortions. The agency is currently considering public comment and will finalize the proposal at or after its June meeting.
In addition to requiring doctors to document how they diagnosed the patient as needing an abortion, the board’s proposal requires them to note whether there was “adequate time to transfer the patient, by any means available to a facility or physician with a higher level of care or expertise to avoid performing an abortion.”
Texas Medical Board President Dr. Sherif Zaafran said this was no different than what doctors are typically expected to do when a patient requires a higher level of care. He said the agency was not trying to “second guess” doctors, but rather laying out what they might expect to see in documentation if they are called on to investigate a complaint.
“All we're asking for is, you've made a determination, you've made a diagnosis, you’ve prescribed a treatment plan,” he told The Texas Tribune. “Help us understand what led you to come up with that diagnosis.”
But doctors — and the lawyers who represent them — say the law’s crushing penalties mean treating complicated pregnancies is vastly different than any other type of medical treatment in Texas.
“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?”
Doctors seeking guidance
Since Texas banned nearly all abortions in summer 2022, dozens of women have come forward with stories of being unable to access medically necessary abortions because their doctors were unclear on when it was legally safe to intervene.
Amanda Zurawski, the lead plaintiff in a lawsuit challenging Texas’ abortion bans, was forced to wait until she was in sepsis before her doctors were willing to terminate her pregnancy. She spent three days in the intensive care unit and may be unable to conceive again as a result of the infection.
Doctors have reported providing alternative, and in some cases, substandard, care to avoid performing an abortion, or waiting to act until patients are “on death’s door,” according to one paper about the impacts of Texas’ 2021 abortion law.
“You sometimes feel like you’re damned if you do, damned if you don’t,” said Ivey. “Patients are in very difficult situations … and then you have the threat from the other side of civil penalties in addition to criminal penalties, along with the loss of your license and prison time. It’s incredibly frightening.”
In December, Kate Cox, a 31-year-old Dallas mother, sued to terminate her non-viable pregnancy. The Texas Supreme Court ruled that Cox did not qualify under the medical exception, and called on the Texas Medical Board to “assess various hypothetical circumstances, provide best practices, identify red lines, and the like,” to clarify the laws.
A month later, Texas lobbyists Steve and Amy Bresnen filed an official petition with the medical board and in March, the agency issued its proposed guidance. The long-awaited proposal mostly pulled together different definitions from across statutes, and reiterated that doctors should rely on their “reasonable medical judgment” to decide when an abortion is necessary.
The main new detail was a list of seven items that must be documented in a patient’s medical record, including how the doctor decided to proceed with an abortion, what diagnostic testing was done, what second opinions were sought, what alternative treatments were attempted and failed, and whether there was time to transfer the patient to another facility to avoid an abortion.
Doctors, health lawyers and women denied medical care for complicated pregnancies decried the guidance as both insufficiently clarifying and additionally burdensome on providers.
“Physicians are already on top of medical documentation, and know what they need to do,” said Gearing, the Dallas lawyer. “This documentation test lists additional things that they should be doing that they may not typically consider as necessary. … It shows the reasonable medical judgment standard isn’t just your typical standard.”
Realities of transferring patients
Lawyers and doctors told the Tribune they were particularly concerned about the requirement that doctors document whether there was time to transfer the patient to another facility to prevent an abortion. In a statement, the Bresnens, the lawyers who filed the initial petition for board guidance, said this would delay care and harm pregnant patients.
“Nothing inTexas law requires a female whose pregnancy threatens her life or major bodily functions to be transferred,” they said in a statement to the Tribune this week. “At any time she meets those criteria, a physician is authorized to perform an abortion and it’s up to her to decide whether the risks of delay outweigh any other consideration.”
In big Texas cities with multiple hospitals in close proximity, Gearing worries it will always be possible to argue the patient should have been transferred rather than treated.
“If you’re at Baylor, and there’s a physician at [another Dallas hospital] who says they would have tried a different treatment, or taken a more invasive approach … are they going to be under heightened scrutiny that they should have transferred?”
Ivey, the Houston OB/GYN, said he worries this may encourage overly cautious hospitals or doctors in isolated areas to transfer patients rather than take on the legal risk of terminating the pregnancy.
“If I were a practitioner in a rural area, and I had very little support, and I had a situation like this, it may be so overwhelming that you may just want to send [the patient] to somewhere where they have more resources,” he said. “But that may not be the best thing for the patient.”
Zaafran said this aspect of the guidance doesn’t mean doctors shouldn’t treat patients experiencing life-threatening emergencies.
“If I've got a patient dying in front of me, I'm not going to sit there and start talking about why I didn't transfer the patient,” he said. “The patient is unstable, and I had to act quickly to save the patient's life … You don't have to say anything else.”
As for transfers after a patient is stabilized, Zaafran said this was no different than other situations that may require a higher level of care than a hospital is able to provide. He said the board didn’t intend to “sit here and second guess” doctors’ decision making, as long as they use their reasonable medical judgment to reach their conclusions.
“You can go to two different doctors and get two different treatments, and neither one would be wrong,” he said. “The medical board, that's how we're going to view it.” But, he noted, the medical board has “no control over whether a district attorney somewhere decides to take on the case and and push in a little bit of a different manner.”
Adding these additional documentation requirements opens the door for greater scrutiny from outside the medical field, Gearing said. Even if the medical board doesn’t see an issue with their choices, doctors found to have violated the state’s abortion laws can face up to 100 years in prison and a fine of $100,000.
“I think there’s concern that … even if they do everything right, this is a political battle versus a medical one,” Gearing said. “If an official wants to make an example, some of my clients don’t feel very confident that their choices would be viewed in a medical context, rather than a more political context.”
EMTALA
As this guidance is being debated, Texas is in court arguing against a federal law that requires hospitals to screen and stabilize any patient experiencing a medical emergency.
The federal Emergency Medical Treatment and Labor Act requires stabilizing care, including abortions, if necessary, when the health of a patient is at risk, but Texas law only allows abortions when the patient’s life is at risk.
The 5th U.S. Circuit Court of Appeals in New Orleans has ruled that Texas’ law supersedes EMTALA, and the Biden administration cannot require hospitals to offer abortions before a patient’s life is at risk. This week, the U.S. Supreme Court heard a similar case out of Idaho, where Elizabeth Prelogar, the U.S. solicitor general, argued that carving abortion out of the law is “entirely inconsistent” with federal law.
“One of the primary motivators here was to prevent patient dumping,” she told the justices Wednesday. “The idea was, we do not want people to have to go somewhere else to get their care. You go to the first emergency room in your state, and they have to stabilize you.”
Zaafran said the medical board’s guidance is in line with hospitals’ EMTALA obligations, as doctors would be expected to stabilize a patient before they try to transfer them.
But Sara Rosenbaum, an EMTALA legal expert at the Milken School of Public Health at the George Washington University, said the guidance to try to transfer a patient “by any means available,” as the proposal says, has the potential to further confuse doctors about their obligations under state and federal laws.
“It's like you gave a roomful of law students a test, and said, think of all the ways to interfere with EMTALA and still look like you're trying to comply,” she said. “It’s a complete perversion.”
Next Steps
The medical board is taking public comment on the proposed guidance and is considering holding stakeholder meetings to hear directly from impacted parties. At the board’s next meeting in June, it will either introduce changes to the proposal or adopt the guidelines as they exist.
Ivey, the Houston OB/GYN, said he appreciates the tough spot the board is in trying to address this extremely fraught issue, but he is disappointed they didn’t do more to address doctors’ fears of being criminalized.
“We need some way we could allow physicians to practice good medicine without worrying about being criminally prosecuted or having some huge civil action against them,” he said. “We want to practice good medicine and take care of people within the confines of the law. We need the law to help us, not hinder us.”
Gearing said she was hoping for more of the “red lines” recommended by the Texas Supreme Court, like saying doctors that got two concurring opinions from fellow physicians could safely proceed.
Zaafran acknowledged the frustration with what the board has put out so far, saying they were being asked to give a “black and white answer” that doesn’t exist.
“The law is black and white — you cannot perform an abortion unless there is potential for major bodily injury or permanent organ damage, or death,” Zaafran said. “The part that is not black and white is determining what is a threat to somebody’s life, or a threat of permanent bodily organ damage or injury … That’s where the judgment is.”
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