Texas lawmakers push for more exceptions to strict abortion ban

Weeks after ProPublica reported on the deaths of two pregnant women whose miscarriages went untreated in Texas, state lawmakers have filed bills that would create new exceptions to the state’s strict abortion laws, broadening doctors’ ability to intervene when their patients face health risks.

The legislation comes after the lawmaker who wrote one of Texas’ recent abortion bans wrote an op-ed in the Houston Chronicle defending the current exceptions as “plenty clear.”

But more than 100 Texas OB-GYNs disagree with his position. In a public letter, written in response to ProPublica’s reporting, they urged changes. “As OB-GYNs in Texas, we know firsthand how much these laws restrict our ability to provide our patients with quality, evidence-based care,” they said.

Texas’ abortion ban threatens up to 99 years in prison, $100,000 in fines, and loss of medical license for doctors who provide abortions. The state’s health and safety code currently includes exceptions if a pregnant woman “has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function unless the abortion is performed or induced.” A separate exception exists that provides doctors with some legal protections if they perform an abortion for an ectopic pregnancy or in cases when a patient’s water breaks.

The bills, filed in the state House and Senate last week, create new health exceptions. They would allow doctors to induce or perform abortions necessary to preserve the mental or physical health of a patient, including preserving the patient’s fertility. Doctors could also provide abortions in cases where the fetus had an anomaly that would make it unable to survive outside the womb or able to survive only with “extraordinary medical interventions.”

State Rep. Donna Howard, who filed the bill in the Texas House, said ProPublica’s recent reporting adds to evidence that the current legislation is a threat to the safety of pregnant women in Texas and increases the urgency to make changes. “This is my reaction,” she said. “It’s one of extreme sadness and disbelief that we are at a point where we are allowing women to die because we haven’t been able to clarify the law,” she said.

Investigations by ProPublica have found that at least four women, including two in Texas, died after they could not access timely reproductive care in states that ban abortion. There are almost certainly others.

In Houston, Josseli Barnica died in September 2021, just days after the state’s six-week abortion ban went into effect. Barnica, 28, was miscarrying at 17 weeks, but doctors did not offer her the medical standard of care—to speed up labor or empty her uterus—for 40 hours, until after the fetal heartbeat had stopped. Her husband said she was told it would be a “crime” to intervene. This left her seriously exposed to infection, experts told ProPublica. Three days later, she died from an infection, leaving behind a young daughter.

RELATED STORY: Woman died after being told it’d be a ‘crime’ to intervene in her miscarriage

Her death was “preventable,” according to more than a dozen medical experts who reviewed a summary of her hospital and autopsy records at ProPublica’s request; they called her case “horrific,” “astounding,” and “egregious.”

The doctors involved in Barnica’s care at HCA Houston Healthcare Northwest did not respond to multiple requests for comment on her case. In a statement, HCA Healthcare said, “Our responsibility is to be in compliance with applicable state and federal laws and regulations,” and that physicians exercise their independent judgment. The company did not respond to detailed questions about its policy.

Nevaeh Crain, 18, made three trips to emergency rooms in rural southeast Texas last year for vomiting and abdominal pain, waiting 20 hours before doctors admitted her. Doctors insisted on two ultrasounds to document “fetal demise” as Crain’s vital signs grew more alarming. By the time they rushed to operate, sepsis had spread throughout her body and her organs failed.

RELATED STORY: A pregnant teenager died after trying to get care in 3 visits to Texas emergency rooms

Experts who reviewed a summary of Crain’s medical records for ProPublica said it may have been possible to save both the teenager and her pregnancy if she had been admitted earlier for close monitoring and continuous treatment.

Doctors involved in Crain’s care did not respond to several requests for comment. The two hospitals—Baptist Hospitals of Southeast Texas and Christus Southeast Texas St. Elizabeth—declined to answer questions about her treatment.

What Is A ‘Medical Emergency’?

The cases highlight how abortion laws can interfere with maternal health care, even for those who want to have a child.

Much of the confusion hinges on the definition of a “medical emergency.” In many cases, women experiencing a miscarriage or a pregnancy complication may be stable. But requiring them to wait for an abortion until signs of sickness are documented or the fetal cardiac activity stops violates the professional standard of care, putting them at higher risk that a life-threatening infection or other complications could develop and be harder to control.

Attaching criminal penalties to abortion procedures has led to a chilling effect, making some physicians more hesitant to care for patients experiencing pregnancy complications in general, doctors told ProPublica.

After ProPublica’s reporting, state Sen. Bryan Hughes, the author of one of the state’s abortion bans, wrote an op-ed in the Houston Chronicle. He said the women were “wrongfully denied care,” but he blamed media outlets including ProPublica for publishing stories that made doctors “afraid to treat the women.”

“When a mother’s life or major bodily function are in jeopardy, doctors are not only allowed to act, but they are legally required to act,” he wrote. “And contrary to what ProPublica would have us believe, Texas law does not prevent them from aiding their patients and saving their lives.”

He argued that the medical emergency exceptions in Texas’ new abortion bans use the same language as abortion laws from the 1800s. “We did not want to risk confusing medical providers by changing the definition,” he said. But that language was written at a time when many more women died in pregnancy and childbirth—before medical innovations such as suction devices to empty the uterus and lower the risk of sepsis helped make maternal care vastly safer.

Hughes is a licensed attorney who lists no medical training on his Senate webpage.

Texas Attorney General Ken Paxton

ProPublica repeatedly requested an interview with Hughes to further understand his interpretation of how doctors should apply the law in specific scenarios. He did not respond to a detailed list of questions and requests to comment for this article.

There is no state office that doctors can call to make sure their decisions in miscarriage cases do not violate the law. Yet Texas Attorney General Ken Paxton has made it clear he will not hesitate to prosecute doctors if the abortions they provide do not meet his interpretation of a medical emergency.

Last year, a Dallas woman asked a court for approval to end her pregnancy because her fetus was not viable and she faced health risks if she carried it to term. Paxton fought to keep her pregnant, arguing that her doctor hadn’t proved her situation was an emergency, and threatened to prosecute anyone who helped her. The courts sided with him, and the woman traveled out of state for the abortion.

Warnings From the Medical Community

After reading ProPublica’s stories, 111 Texas OB-GYNs signed a letter placing blame for the deaths squarely on state abortion law that “does not allow us as medical professionals to do our jobs.”

“The law does not allow Texas women to get the lifesaving care they need and threatens physicians with life imprisonment and loss of licensure for doing what is often medically necessary for the patient’s health and future fertility,” they wrote.

Their letter adds to years of warnings from the medical community and from patients themselves: 20 women who were denied abortions for miscarriages and high-risk pregnancy complications joined a lawsuit against the state. They asked the courts to clarify the law’s exceptions, but the Texas Supreme Court refused.

Dr. Austin Dennard, a Dallas OB-GYN, is one of the women represented in the lawsuit. She has seen the consequences of the laws from both sides. As a doctor, she has to call a hospital lawyer any time she wants to provide abortion care to patients facing emergencies. She also was personally affected when she was pregnant and learned her fetus had anencephaly—a condition in which the brain and skull do not fully develop. Texas’ law would have forced her to carry to term, putting her through more health risks and making her wait longer to try again for another pregnancy, so she traveled out of state for an abortion.

She said lawmakers have failed for years to listen to the doctors who have to navigate these laws.

In response to Hughes’s op-ed, she said: “We’re the ones with their boots on the ground. We’re the ones taking care of these patients, and we’re the ones telling you it is very nebulous and confusing, and we’re all terrified,” Dennard said.

State Sen. Carol Alvarado, who filed the Senate version of the bill, said she worked with physicians who represent major medical organizations to draft the exceptions.

“This bill is not about politics—it’s about ensuring that doctors can provide life-saving care without hesitation or fear of prosecution,” Alvarado said. “This bill is about restoring trust in our health care system and ensuring that no one has to endure the heartbreak of wondering whether more timely medical care could have saved their loved one.”

Molly Duane, a lawyer with the Center for Reproductive Rights who represents women who are suing the state, said the bill, if passed, could help save some lives, but cautioned that without removing the threat of criminal penalties, some doctors might still deny care.

“Exceptions don’t work in reality, no matter how clear they are,” Duane said. “We’ve seen hospitals turn away Texans facing life-threatening ectopic pregnancies, even though providing an abortion in these cases is legal under state law. As long as doctors face the threat of jail time and loss of license, they will be terrified to provide care.”

Where the Medical Board Stands

In his op-ed, Hughes said that the Texas Medical Board has issued guidance that an emergency doesn’t need to be “imminent” to keep physicians “from doing what is medically necessary” under the law.

But Dennard, echoing many doctors who spoke to ProPublica, said the board was “incredibly unhelpful.” The guidance instructed doctors on ways they could document why the abortion was necessary and still left open the question of how lawyers and courts might interpret “medically necessary.”

“None of them want to face the reality of the situation, which is that the laws that were put in place are directly harming pregnant people, and it is their fault,” she said.

The board, whose members are appointed by the governor, issued the guidance earlier this year after declining for more than two years to respond to questions about how the law should be interpreted, even as patients facing health risks publicly shared their stories of being denied abortion care and journalists asked the board to respond. The board issued guidance only after the Texas Supreme Court directed it to do so.

Plaintiffs speak at a press conference outside the Texas Supreme Court in Austin, Texas, on Nov. 28, 2023. The Texas Supreme Court heard arguments Tuesday in a case brought on behalf of 22 women who were denied abortions even though they had serious complications with their pregnancies that were in some cases life-threatening.

The president of the board, Dr. Sherif Zaafran, said in an interview that it would have been “inappropriate” to weigh in without that direction.

“Somebody could easily sue the medical board and say, ‘You shouldn’t have done this,’ and then we’d be in limbo also, and that could have actually dragged things out even longer.”

In the meantime, women’s lives were left in the balance.

Last year, lawmakers created a new exception for two conditions that the original law had not addressed: ectopic pregnancies and previable premature rupture of membranes, when a patient’s water breaks too early, causing a miscarriage.

But the exception is small comfort, some doctors say. It’s written in a way that only allows doctors to make an “affirmative defense” for a legal penalty. An affirmative defense, if found credible by a judge or jury, means the defendant wouldn’t be liable for the alleged acts even if he or she committed them.

“Nobody wants to be that poster child,” said Dr. Robert Carpenter, a Houston OB-GYN who signed the letter.

The Houston Chronicle also published 10 letters to the editor in response to Hughes’ editorial, eight of them arguing against his claim that the Texas abortion ban is clear.

Among them was Trevor M. Bibler, an assistant professor at Baylor College of Medicine’s Center for Medical Ethics and Health Policy.

“If doctors weren’t threatened with jail time and accused of murder just for upholding a basic standard of care, then these tragedies wouldn’t happen,” he wrote. “The possibility that the cause of these tragedies are the doctors who read the writings of the left-wing media rather than the law is absurd, disingenuous and not at all convincing. His law, not the media, is the cause.”

Howard said she’s hopeful the Texas Legislature will listen to the medical community and the public and create health and other exceptions in the abortion laws. She also pointed out that President-elect Donald Trump has said that he supports exceptions in cases of rape and incest, which Texas’ ban does not include. She filed a separate bill to propose such exceptions.

“It’s really just unbelievable, from a state that considers itself to be pro-life, that these obstacles will be put in place that are the antithesis of pro-life,” Howard said.

As other states assess whether to ban or protect abortion rights, Texas is providing an example of what to expect.

In Wisconsin, state Supreme Court Justice Jill Karofsky recently pressed an attorney for the state to explain whether an abortion ban on the books from 1849 would stop doctors from providing abortion care to patients who were experiencing miscarriages if the court allowed it to go into effect.

Describing Barnica’s case, she asked for clarification: “She suffered an infection that killed her because medical providers were unwilling or unable to give her the health care that she needed,” she said. “That’s a scenario that could easily—and perhaps has easily—play out here in Wisconsin under your interpretation of [the law], couldn’t it?”

“I’m not sure, Justice Karofsky,” the attorney responded. “I’m not a doctor.”