Governor Abbott has signed into law a very significant piece of legislation that flew largely under the radar this session.
HB 3058 by Rep. Ann Johnson (D-Houston) and Sen. Bryan Hughes (R-Tyler) establishes an affirmative defense in an action against a physician or health care provider arising from two relatively common pregnancy complications: ectopic pregnancy and a previable premature rupture of membranes. In order to prove up the defense, a physician or provider must show they he or she exercised reasonable medical judgment in providing medical treatment for those complications. The defense likewise extends to a disciplinary action by the Texas Medical Board and criminal prosecution under Chapter 9, Penal Code (performance of an abortion). The bill also protects a pharmacist or pharmacy that receives, processes, or dispenses a prescription drug or medication ordered by a physician or provider to which the defense applies.
Given the sensitivity of the issues HB 3058 addresses, we did not think it prudent to discuss it as the bill made its way through the process. But now we can say that TCJL took responsibility for drafting the legislation and, thanks primarily to the indefatigable efforts of our fabulous General Counsel Lisa Kaufman, shepherded it through the process without raising a fuss. In fact, the filed version of the bill, in which form the bill existed all the way up to the Senate committee substitute, did not allude to pregnancy complications at all, but simply added a new section to Chapter 74, CPRC (health care liability claims), shielding a physician from liability solely for providing a medically necessary treatment or procedure to a patient with whom the physician had a physician-patient relationship and for which the patient gave informed consent.
The bill was drafted this way was to create a vehicle that could be amended later, once the necessary level of political consensus developed around the idea of doing something to ameliorate some of the unintended consequences of SB 8, the Dobbs decision, and the revival of Texas’ criminal penalties for performing an abortion. The subject of introduced version of the bill thus had to be broad enough to accept the specific amendments eventually made in the Senate. Otherwise, once the bill came to back to the House with the amendments, it would have almost certainly been subject to a point of order that the Senate amendments were not germane to the original bill. This can be a very difficult needle to thread, so the bill had to be thoroughly vetted at each step of the process to ensure that we stayed within the rules.
What’s even more remarkable about this story is that HB 3058 passed on local calendar in both houses. It passed the House on May 12 and the Senate on its final local calendar on May 26. The House concurred in the amendments later that day, sending the bill to the Governor’s desk. It is something of a minor miracle that a bill on this topic could possibly have gotten through the process that way.
So why did it? In short, it happened because of the masterful and discreet way that the bill’s House author, Rep. Johnson, and Senate sponsor, Sen. Hughes, handled things in their respective chambers. It also required not only the cooperation but the total buy-in of key legislators on both sides and, of course, the offices of the Governor, Lt. Governor, and Speaker. On the House side, HB 3058 would not have gotten anywhere close to the launch pad without the complete support of House Judiciary & Civil Jurisprudence Committee Chair Jeff Leach (R-Allen) and joint author and fellow committee member Shelby Slawson (R-Stephenville). The other House joint authors, Rep. Donna Howard (D-Austin) and Rep. Senfronia Thompson (D-Houston) assured strong bipartisan support and critical assistance on the House floor. In the Senate, Sen. Hughes, chair of Senate State Affairs likewise put together a bipartisan team that included Sen. Paul Bettencourt (R-Houston), Sen. Sarah Eckhardt (D-Austin), Sen. Juan “Chuy” Hinojosa, and Sen. Lois Kolkhorst (R-Brenham). And in the final analysis, HB 3058 still would not have prevailed if Governor Abbott, Lt. Governor Patrick, and Speaker Phelan hadn’t signed off.
Those are a lot of moving parts, and there are a thousand ways that the bill could have gone off the rails. Just think about how frequently that happened this session, and you’ll see what we mean. We don’t have enough superlatives that are adequate to express our gratitude to Rep. Johnson (with whom this effort originated), Rep. Leach, and the House joint authors and to Sen. Hughes and his co-sponsor team. We cannot also say enough good things about the staff work of Rep. Johnson’s and, as always, Rep. Leach’s office and, of course, to Sen. Hughes’s superb team. Each participant played their part with discretion, good judgment, and, above all, the patience to wait until exactly the right time to make the next move.
We also cannot give adequate thanks to our longtime and loyal TCJL members, the Texas Medical Association and Texas Hospital Association, for quietly supporting the effort and assisting us with their expertise and the experience of their members, who deal with these issues every day. The same goes for all of our members who trust us to do the right thing and who provide us with the flexibility and support necessary when dealing with such important, but extremely difficult, matters.
Regardless of where one sits on the spectrum of viewpoints on the larger issue, HB 3058 proves that people working in good faith from across the political spectrum can still come together to remedy an identified problem even if it implicates a bitterly contested and divisive public policy issue. HB 3058 not only did that, but it further created an opening to discussions about other unintended consequences that may need to be addressed in the future.