A bipartisan group in Texas wants to clarify when doctors can perform abortions : Shots

Since abortion became nearly entirely illegal in Texas in 2021, the state has seen a significant rise in the number of women who die in pregnancy or after giving birth. A group of bipartisan lawmakers in the state wants to change that by clarifying the state’s abortion ban with a new law.

A central player in this effort has been Republican State Senator Bryan Hughes. Though he was one of the original sponsors of The Texas Heartbeat Act which outlawed abortion, Hughes is now leading an effort to make clear there is a narrow pathway to the procedure.

“ Everybody agrees that the life of the mother should be protected,” says Hughes, who is the lead sponsor on the new legislation called, The Life of the Mother Act. Hughes says the bill clarifies that doctors can terminate a pregnancy when the mother’s life is at risk, as well as provide training for physicians on the subject.

“Most hospitals and doctors are getting it right, but a few are not,” he says.

The bill represents a sea change for the Senator, who last year wrote an op-ed in the Houston Chronicle defending the original law and blaming the media for doctors’ failures to treat women in need of life-saving abortion care.

If the bill passes, it would be a rare bipartisan victory in the Texas legislature, but whether it will make a significant difference for pregnant women and their doctors is unclear and is a question on which medical professionals across the state have not reached consensus.

Texas is a dangerous place to be pregnant

Despite the Trump administration exhorting Americans to have more babies, pregnancy can be a dangerous endeavor in the United States. Geography matters. A recent report from the Gender Equity Policy Institute showed that the risk of maternal death in Texas is 155 percent higher than it is in California, where 9.5 women per 100,000 died.

Since Texas outlawed most abortions, the state has seen increased rates of maternal death, sepsis among women who are experiencing miscarriage and a strained workforce of obstetricians increasingly reluctant to practice in the state. Doctors who perform a prohibited abortion can face first degree felony charges, have their license revoked and incur fines of at least $100,000.

Reporting from ProPublica shows that several women have died after experiencing an inability to get an abortion or a delay in getting one. The organization also documented soaring rates of sepsis among hospitalized women who lost a pregnancy in the second trimester.

“ We warned our colleagues that this would happen,” says Democratic State Senator Carol Alvarado, one of several Democrats who supports the bill. “Let’s figure out what we need to do to give our physicians clarity.”

The bill spells out that abortions can be performed when a woman’s life is at risk, even if it is not “imminent,” and or may cause medical impairment to the mother.

Mixed reception

The bill passed the State Senate unanimously and now heads to the House. Conservative Governor Greg Abbott has signaled his support.

But the proposed bill has gotten mixed reactions elsewhere. While some medical interest groups have endorsed the legislation, others are opposed.

“This bill would keep Texas’s abortion ban in place,” reads a statement from the American College of Obstetricians and Gynecologists. “And we strongly oppose the abortion ban and will continue to do so.”

Some advocates for abortion rights argue the law is an exercise in futility.

“ There’s a lot of language here, but it’s all circular,” says Molly Duane, an attorney for The Center for Reproductive Rights. “In my legal opinion, it would actually make the exception more confusing.”

Duane points out that determining when someone’s life is in jeopardy is a subjective matter of medical interpretation and legal language to quantify risk will inevitably be flawed.

“How sick does someone have to be for this exception to be in play?” she asks.

That’s a question, she says, that is not answered — nor is it clear if answering it is possible.

“ It leads me back to the inevitable conclusion that exceptions just don’t work in practice.”

Dr. Todd Ivey, an obstetrician in Houston, has been dealing with life-threatening circumstances for his pregnant patients in recent years. He is hopeful the legislation could offer clarity.

“ Personally, I feel like it will help me feel more assured in providing safe care for women and in discussing options with women.”

Ivey recalls one patient who was battling metastatic breast cancer and had four young children at home. She needed to terminate a pregnancy in order to continue chemotherapy.

“ I literally spent eight plus hours calling around trying to find someone that would accept her,” says Ivey. “Trying to find an institution to provide this care so she could get her cancer care.”

Under this bill, Ivey believes, this patient would have been able to end her pregnancy without delay. That said, he does think the proposal has its shortcomings. “I don’t think it’s a perfect bill,” says Ivey.

It’s hard to define ‘life threatening’ 

Texas’ abortion law allows for no exceptions for rape, incest, or fatal fetal anomalies. The original law implied some exception for medical emergencies, but offered a murky definition of what the term actually meant. Doctors who do not comply with the Texas abortion ban could lose their medical license, face felony charges, or risk life in prison, which is still the case.

A previous attempt from Democratic State Senator Ann Johnson tried to give doctors some clear guidance on things like ectopic pregnancy and ruptured membranes, a condition which can quickly lead to fatal infections for the mother if the uterus is not emptied. But many felt the amended law still did not offer the legal guarantees that doctors needed to exercise their medical judgement and avoid harsh punishment.

Texas is not the only state that has sought to clarify abortion exceptions. South Dakota made a video in an effort to educate its doctors on abortion law. Kentucky lawmakers worked to add a list of medical conditions that would qualify as exemptions. In Tennessee, legislators tried to add an exemption for women carrying pregnancies in which the baby would not survive.

None of these efforts have offered a national template for states seeking to do the same.

‘My life was never at risk’

Kaitlyn Kash is an advocate for abortion rights who came to the cause after experiencing her own medical crisis. She left the state for an abortion after her fetus was diagnosed with a rare fatal condition.

She recalls the doctor’s appointment in which she learned of the diagnosis.

“They kept telling me all of these horrible things like ‘lethal anomaly,’ and ‘incompatible with life,’ ‘suffocation at birth,’ ‘bones breaking in utero,’ ‘lifesaving medical care,’ ‘lifelong hospital stays,’ ‘short life expectancy,'” she remembers. “You’re just sitting there going, oh my God, every time I ask a question, it gets worse.”

She points out that this new law would not have changed her circumstances.

“ My life was never at risk under the qualifications of the medical exemption,” she says.

Kash says this new law doesn’t take into account threats to a mother’s mental health — such as carrying a baby to term that won’t survive. The new law, she says, would not give women the latitude they need to make decisions about what is best for their own health.

“I hope this law gives doctors the clarity they need,” she says. “But that is a small piece of this bigger picture.”

Edited by Jane Greenhalgh