Just a few days after Texas implemented a ban on abortions after six weeks of pregnancy, a woman died due to doctors delaying treatment for her miscarriage for 40 hours, according to reports.
Experts indicated to ProPublica that the September 2021 death of 28-year-old Josseli Barnica was a “preventable” tragedy. Barnica is the third woman highlighted by ProPublica who has died in recent years after being unable to access legal abortion services or having her medical care postponed.
While more than a dozen states have enacted abortion bans since the Supreme Court overturned Roe v. Wade, these laws technically allow for the procedure in medical emergencies. However, many doctors across the country have expressed that the vague language of these laws leaves them uncertain about when they can legally intervene. As a result, some physicians report that they feel compelled to wait until a patient’s condition is critical before attempting to provide care. It’s been two years since the U.S. Supreme Court issued its ruling in Dobbs v. Jackson Women’s Health Organization, which not only reversed the 1973 decision in Roe v. Wade but also eliminated the national right to abortion, empowering states to enforce their own abortion regulations.
In the wake of this significant change, women, medical professionals, and activists have sought to challenge and clarify the boundaries of Texas’ near-total abortion ban.
Current Law
Texas had already put its six-week abortion ban, known as Senate Bill 8, into effect before the Dobbs decision. However, this ruling led to even stricter regulations. The state’s trigger law was activated following the overturning of Roe, making it illegal to perform an abortion from the moment of fertilization, except when a mother’s life or a “major bodily function” is endangered.
While Texas laws do not penalize pregnant individuals seeking an abortion, they allow private citizens to file lawsuits against anyone who has performed, assisted, or facilitated an abortion under SB8. Physicians risk severe consequences, including fines up to $100,000, potential imprisonment for up to 99 years, and the revocation of their medical licenses, if found guilty of performing illegal abortions.
Seeking Judicial Clarification of Texas Abortion Law
Over the past two years, several significant lawsuits have sought to clarify aspects of Texas abortion law, particularly regarding what constitutes a medical emergency that warrants an abortion. Texas law lacks a specific definition, leaving doctors to rely on their “reasonable medical judgment.”
One notable case, Zurawski v. Texas, involved approximately 20 women who asked the courts to specify the circumstances under which emergency medical situations justify an abortion. Among the plaintiffs were two OBGYNs who stated that the ambiguity surrounding the exceptions limited their ability to provide necessary care; the remaining plaintiffs were women who argued they should have been offered an abortion to address serious pregnancy-related health issues. Lawyers from the Center for Reproductive Rights contended that doctors should only need to demonstrate a “good faith judgment” in navigating pregnancy emergencies.
Recently, the Texas Supreme Court rejected the Zurawski challenge. In a unanimous ruling, justices affirmed that existing Texas law is adequate for allowing doctors to exercise their reasonable medical judgment, stating that an immediate medical crisis is not a prerequisite for permitting an abortion under current law.
In the case of Cox v. Texas, which was heard in December 2023, the Texas Supreme Court declined to grant a specific woman, Kate Cox, an abortion under the state’s emergency medical provision. The court determined that medical judgment should rest with doctors rather than judges but noted that the Texas Medical Board could do more to alleviate confusion about when emergency abortions are permissible.
Guidance from the Texas Medical Board
Throughout the first half of 2024, the Texas Medical Board worked to develop guidance for physicians regarding the provision of emergency abortion care.
A new rule approved on June 21 mandates that doctors document their decision-making process for offering an abortion within one week of the procedure. They must also note the medical conditions of the pregnant patient and the diagnostic methods used to assess the patient’s risk level. If a formal complaint is filed with the Texas Medical Board, the board may enlist independent expert physicians to evaluate a doctor’s decision to perform an abortion.
This rule does not create a specific list of conditions under which an abortion is permissible. The TMB President, Sherif Zaafran, mentioned that any such list would be incomplete and would not adequately reflect the variety of unique medical circumstances.
Additionally, the board addressed concerns raised during the rulemaking process, emphasizing that an imminent health crisis is not a requirement for an abortion to be justified.
Dr. Todd Ivey, an OBGYN based in Houston, expressed that the new rule provided little reassurance regarding his legal protections. He stated that the severity of potential penalties would always serve as a deterrent.
Legislative Initiatives
Dr. Ivey, who actively advocated for physicians during the TMB’s rulemaking process, plans to focus on legislative measures moving forward. He expressed a desire to see abortion decriminalized in Texas and, if that proves impossible, to have the law include exceptions for cases of rape, incest, and congenital or chromosomal anomalies.
He strongly criticized the provision of SB8 that permits private citizens to sue doctors performing abortions, stating, “The witch hunt law needs to be abolished. It is not the responsibility of a private citizen to hold a physician accountable for medical decisions.”
During the 2023 legislative session, the Texas Legislature established an affirmative defense for doctors who perform abortions under specific medical conditions, such as ectopic pregnancies and previable premature rupture of membranes (PPROM), where a patient’s water breaks too early.
Some medical professionals, including Dr. Ivey, concurred with Zaafran that a comprehensive list of allowable conditions would fall short of providing the protection that doctors seek. Conversely, others, like Dr. Andrea Palmer from Fort Worth, argued that such a list could be a “wonderful place to start,” suggesting that there are clear-cut cases that could relieve pressure on physicians and empower women to make choices regarding their pregnancies.
Meanwhile, Texas Attorney General Ken Paxton stated on Monday, the anniversary of the Dobbs decision, that efforts regarding abortion policy remain ongoing. He claimed that “the Biden Administration continues to utilize illegal agency regulations and other means to compel states to implement its extreme abortion agenda, even when it violates state laws,” and asserted his commitment to defending the sanctity of life against unconstitutional challenges to Texas’s life-affirming legislation.
The Implications of EMTALA
After the overturning of Roe in 2022, the Biden administration issued guidance stipulating that physicians must provide abortions when necessary to stabilize pregnant patients with emergency conditions. This guidance cited the 1986 Emergency Medical Treatment and Active Labor Act (EMTALA), asserting that it takes precedence over any state laws prohibiting abortion. EMTALA applies to facilities that receive Medicare or Medicaid funding.
In response, Texas filed a lawsuit against the U.S. Department of Health and Human Services, claiming that the guidance constituted an unlawful abortion mandate. Initially, a judge sided with Texas in 2022, issuing a temporary injunction against the guidance. The 5th Circuit Court of Appeals upheld that injunction in early 2024 before HHS requested a review from the U.S. Supreme Court.
Recently, the Supreme Court addressed a similar case from Idaho, dismissing it as “improvidently granted,” which indicated that the Court should not have taken the case. It also reinstated a lower court ruling that temporarily permits abortions in Idaho to protect maternal health, despite Idaho state law prohibiting such procedures.
Because the Court refrained from addressing the core issues of the Idaho case, Texas’s challenge to EMTALA remains unresolved, with the 5th Circuit Court of Appeals ruling still active.
Read More: ABC Broadcasts Fake Election Results, Fuels Conspiracy Theories | WATCH
