The Battle for Women’s Health in Texas

In the heart of Texas, a battleground has emerged, where the very essence of women’s health is under siege. The issue of abortion, once a matter of personal choice and medical necessity, has been thrust into the political arena with such force that it threatens to eclipse the fundamental well-being of countless women. The Lone Star State’s recent abortion ban, touted as a crusade to protect life, paradoxically endangers the lives of women who find themselves in the direst of circumstances. As the legal landscape shifts, women grappling with complex medical conditions are left in the crosshairs, forced to navigate treacherous waters where their very survival hangs in the balance.

Prior to the landmark Supreme Court decision in Roe v. Wade, Texas maintained a strict prohibition on abortion with only one exception: to save the life of the pregnant woman. This law, rooted in the state’s penal code enacted in the mid-19th century, imposed severe penalties, including imprisonment of up to five years, for those providing abortion procedures.

Fast forward to the present day, where the reverberations of Roe v. Wade’s overturning echo loudly in Texas. With the activation of the state’s trigger law, the pre-Roe complete ban on abortion was resurrected. While an exception for saving the life of the pregnant woman remains, the absence of allowances for cases of rape or incest and the imposition of stringent penalties, including potential life imprisonment and the loss of medical licenses for doctors, underscore the gravity of the legal landscape.

Amidst mounting criticism and legal challenges, the Texas legislature took a step towards amending the law during the 2023 legislative session with the passage of HB 3058. This amendment introduced affirmative defenses for exceptions relating to ectopic pregnancies and previable premature rupture of membranes (PPROM), acknowledging the complexities of reproductive health. However, the law remains vague, and the lack of clarity puts the lives and health of women at risk.

In a testament to the stakes at hand, courageous women, including two OB/GYNs, are suing the state arguing that the abortion laws in Texas delayed their care and endangered their lives. In a separate lawsuit, Kate Cox pled for the right to have an abortion, in the face of a devastating diagnosis. Her plea was met with a callous denial that defied both compassion and reason. The Texas Supreme Court did, however, acknowledge that it is the medical profession’s rightful authority to dictate patient care. Yet, without concrete measures to shield doctors from the specter of politically motivated legal persecution, this recognition remains hollow, a mere token gesture in the face of the mounting crisis.

Amidst this tumult, attorneys Steve and Amy Bresnen petitioned Texas Medical Board to provide clarity, identify the steps doctors can take to ensure that their decisions are in line with the standards for medical exceptions, and provide protection for doctors navigating the treacherous legal terrain. (Click here to see Bresnen and Bresnen’s petition.) Instead of adopting their proposal, the Texas Medical Board issued their own guidance that was just as vague as the abortion ban itself. The Texas Medical Board, tasked with the weighty responsibility of shaping the healthcare landscape, has faltered in its duty to provide meaningful guidance.

Advocates had hoped TMBs guidelines would address at what point in a medical emergency a doctor can perform an abortion. The issuance of clear guidelines defining the point at which an abortion can be performed during a medical crisis is paramount. Without such guidance, women facing life-threatening situations could be left in perilous limbo, bleeding out while waiting to get “close enough” to death.  (Who needs timely intervention when you can play Russian roulette with someone’s life, waiting for them to teeter on the brink of death before deeming it acceptable to act?) TMB’s tepid response, rife with ambiguity and devoid of substance, leaves healthcare professionals stranded in a sea of uncertainty, their hands tied by the specter of politically motivated legal reprisal. The Texas Medical Board is accepting public comments about how to improve its guidelines until June 30, 2024. (Click here to make a public comment to Texas Medical Board.)

It’s troubling that the burden of risk seems to be disproportionately placed on women, who may face life-threatening situations or serious health complications due to pregnancy. The state’s dystopian expectation that women should be willing to risk their lives and bodily functions in the event of a problematic pregnancy is deeply troubling and highlights a fundamental disregard for women’s health.

It is abundantly clear that the current legal framework is woefully inadequate in safeguarding women’s health and protecting our much-needed medical practitioners from civil and criminal penalties. Only through collaborative, inclusive efforts that transcend political divides can we forge a path forward—one that prioritizes the well-being of women and empowers healthcare professionals to fulfill their duty without fear OR hesitation. 

If legislators are genuinely committed to valuing every life, they must devote as much energy to ensuring the safety of women in dire medical emergencies necessitating abortion as they do to advancing voucher bills and busing migrants to other states.