Abortions for medical reasons continue in Texas

As soon as she saw the image of her baby on the ultrasound screen at the hospital in Fort Worth, Texas, Sarah Hayes knew she was about to get bad news. She had been leaking amniotic fluid for several days, but so far all of the ultrasound scans had shown she still had sufficient levels of fluid surrounding her baby.

This scan was different. Instead of the customary black bubble surrounding her baby’s gray profile, there was only gray surrounding the baby. Hayes cried silently through the rest of the ultrasound and then broke down weeping when the sonographer left. When the maternal-fetal medicine doctor arrived in the room, she confirmed that Hayes had no amniotic fluid.

Hayes remembers the specialist saying that the baby—currently around 17 weeks gestation—had a 14 percent chance of survival. The doctor also laid out Hayes’ options. Because Hayes faced a risk of developing a deadly infection, she could induce labor immediately and deliver the baby, who would not survive. Or she could pursue expectant management, which would entail seeing how long she could continue the pregnancy while closely monitoring for signs of infection or other issues requiring immediate delivery.

Texas laws prohibit medical professionals from performing abortions except in cases that—according to the “reasonable medical judgment” of the attending physician—put the life and physical health of the mother at risk. Even though Hayes and her baby were stable at the moment, her doctors determined that it would be within the law to induce labor even if that meant it would result in the death of her baby.

Hayes’ story counteracts reports of widespread confusion about the laws, showing that at least some doctors in the state understand which cases qualify as medical exceptions to laws that protect babies from abortion. Pro-life groups also point to the state’s reported numbers of abortions performed for medical reasons as evidence that doctors know how to apply the exceptions. But the confidence of some doctors doesn’t rule out the confusion among other physicians in the state and their genuine fear of facing severe penalties for violating the law.

To address these concerns, the Texas Medical Board is putting together a rule to help clarify the exceptions in the state’s abortion laws. A proposal the board released last month is now open for public consideration and comment as the board members work toward a final version, which likely won’t be available until summer or fall.

At a March 22 meeting discussing the proposed rule, representatives of pro-life organizations celebrated that it relied on language from existing statutes—an intentional move on the part of board members, who said it was not their role to make law. Other speakers said the board should move beyond the language that already exists in Texas law to alleviate physicians’ concerns.

Sue Liebel, Midwest regional director for Susan B. Anthony Pro-Life America, pointed to the Texas Induced Terminations of Pregnancy reports in her comments as a reason why the board should rely on the law’s existing language in its guidance.

“We know there are doctors who understand this law because the state’s reporting data and statistics show that abortions under the life of the mother provision have continued at about the same rate each month since the Dobbs decision,” she said, referencing the U.S. Supreme Court’s 2022 ruling that gave states more power to regulate abortion. Liebel added that the standard of a physician’s “reasonable medical judgment” was in Texas case law long before the state’s abortion statutes. “It’s never been questioned as unworkable or too high of a standard,” she told the board.

In the seven months of 2022 before the state’s law protecting babies from abortion starting at conception took effect in August, an average of about two abortions occurred per month under the medical exception to the law protecting babies with a detectable heartbeat. In the same seven months of 2023, the average number of abortions under these exceptions increased to five per month under the protections for unborn babies starting at conception. There are no known cases of elected officials investigating any of these abortions.

In 2023, state reports classified most of the abortions performed under this exception as “medical” or nonsurgical and as taking place in the second trimester, likely indicating inductions of labor using drugs like the abortion drug misoprostol.

If Hayes had chosen induction after her doctors offered it to her, her baby likely would have appeared among those statistics. But Hayes opted instead for expectant management, telling her doctors she would not be the one to end her son’s life. That began several weeks of reading, cross-stitching, and parenting her three other children from the couch while checking her temperature twice a day for signs of an infection.

State data doesn’t provide a full picture of how abortions performed for medical reasons have changed or stayed the same in Texas since before the state began enforcing its heartbeat law in September 2021, which halted most abortions after about six weeks of gestation. The state did not require abortion providers to indicate whether they had performed an abortion for a medical reason before that law took effect. No monthly reports of abortions performed for medical reasons appear until the 2022 reports. However, the number of abortions occurring in hospitals—the setting most likely for abortions performed for medical reasons—averaged about seven and six a month in 2019 and 2020, respectively.

Reports show confusion still exists among doctors. A Texas woman, Amanda Zurawski, made headlines in 2022 after her doctors denied her an induction when her water broke at 18 weeks. They didn’t induce labor until she developed sepsis and almost died. She’s now the lead plaintiff in an ongoing lawsuit several women filed against the state of Texas last year, arguing that the abortion laws prevented them from obtaining medically necessary abortions. More recent reports tell of hospitals sending away women with potentially life-threatening conditions such as ectopic pregnancies, citing the abortion laws.

Other individuals who spoke during the public comment period of the recent Texas Medical Board meeting explained this confusion. “I certainly understand the concept of reasonable medical judgment,” said Dr. Richard Todd Ivey of Houston, speaking on behalf of the American College of Obstetricians and Gynecologists during the meeting. “But in this area that’s so heavily scrutinized, and the penalties are so severe, . . . I think it’s appropriate to understand a physician’s confusion and hesitation in this arena.”

Healthcare professionals who abort babies in Texas could face penalties of life imprisonment for a first-degree felony and a $100,000 fine. They can also be subject to disciplinary action from agencies such as the Texas Medical Board, which could revoke the worker’s license.

Rachael Nelson Gearing, a healthcare attorney in the Dallas area, said in her comments that doctors she works with are similarly nervous that their reasonable medical judgment may not withstand the scrutiny of pro-life elected officials in the state. “As much as we understand that the [board] does not get to make law and your job is to interpret and provide guidance, I think we are hoping that [it] will be bold and provide stronger guidance,” said Gearing.

After choosing expectant management, Hayes did not develop an infection and eventually went into labor naturally. Her son, Jack, was born at 24 weeks. He died several hours after his birth, but Hayes said she prizes the time she and her husband had with him and the comfort she has knowing they fought for his life.

“I have zero guilt. I have zero misgivings,” Hayes said. “I know that we did everything we could. So I’m never going to have to sit and stew on that trauma of maybe being responsible for a child’s death.”

Hayes’ father, Dr. Harold Fain, is proud of his daughter’s decision but understands the concerns doctors have. A pro-life family medicine doctor in Texas, Fain formerly delivered babies but now works in occupational medicine. He compared doctors’ hesitation to treat women in complicated pregnancy cases with his own hesitation to get involved in other highly regulated areas of medicine. He said he doesn’t prescribe opioids often but remembers receiving guidance about strict rules related to opioid prescriptions in the state that made him want to have nothing to do with the drugs.

“A lot of docs will react that way when they have a new law, like Texas,’ outlawing abortion, even though there might be some clauses in there that say that there’s exceptions,” Fain said. “They kind of say, ‘I don’t want anything to do with it. It’s all on you, pregnant lady. . . If you need an induction or whatever, you have to go somewhere else to do it.’”