The Texas Medical Board (TMB) has unanimously adopted a final rule to help physicians navigate the emergency medical exception to the state’s abortion ban, which allows abortions only to preserve a pregnant person’s life or prevent substantial impairment of a “major bodily function,” defined below.
The new rule, found at 22 Texas Administrative Code §§ 165.7-165.9, clarifies that:
- Physicians have up to seven days after performing the emergency abortion to complete initial documentation describing their decision-making process, described in detail below.
- Physicians are no longer required to document whether there was adequate time to transfer a patient to a “higher level of care” to avoid performing an abortion.
- Imminence of the threat to the life of the mother or substantial impairment is not required. Physicians do not need to wait for the condition to become life-threatening or to impair a major bodily function, defined as including, but not limited to, functions of the immune systems, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.
Although the TMB did not include specific guidance on the topic, the Texas Supreme Court’s recent Zurawski decision emphasized that the law requires a physician to use “reasonable medical judgment” to determine when to perform an emergency abortion.
Additionally, TMB President Dr. Sherif Zaafran, in a recent press release, stated, “the use of ‘reasonable medical judgment’ does not lend itself to a list or formula but rather is completely and fully dependent on the condition of the patient, the location and the circumstances surrounding that specific event, as well as the skill, training, and knowledge of the treating physician.”
Physician and patient advocacy groups continue to push the TMB and legislators for more robust clarification of the law, with expanded and medically accurate definitions, to ensure physicians can treat patients in a timely manner, without onerous documentation requirements and fear of civil or criminal prosecution.
Documentation
Given the rule’s clarifications of the law, physicians must keep in mind the emergency abortion documentation requirements. The medical record should describe clearly the physician’s reasonable medical judgment in reaching conclusions about the risks to the patient. Within seven days of an emergency abortion procedure, physicians should document the following in the patient’s medical record:
- The abortion was performed in response to a medical emergency to prevent either the patient’s death, or a serious risk of substantial impairment of a major bodily function;
- The circumstances placing the patient in danger of death and/or a description of the serious risk of substantial impairment;
- The major bodily function at serious risk of substantial impairment;
- How the danger of death or serious risk of substantial impairment was determined; and
- The rationale for why the abortion was performed.
Although the rule makes it clear that the removal of an ectopic pregnancy does not constitute an abortion, the rule does include the need to document:
- If the treatment was in response to an ectopic pregnancy at any location; or
- If the treatment was performed to address previable premature rupture of membranes.
References/Weblinks
Texas Administrative Code:
- 22 TAC § 165.7 - Definitions
- 22 TAC § 165.8 - Abortion Ban Exception Performance and Documentation
- 22 TAC § 165.9 - Complaints Regarding Abortions Performed
Texas Medical Board Press Release (June 21, 2024): “TMB Provides Clarification on Rules Regarding Exceptions to the Ban on Abortions”
Texas Health & Safety Code: Chapter 170A § 170A.001(4) - Performance of Abortion (and Definitions)