Legislation clarifying current law to ensure that a physician may treat a pregnant woman for a life-threatening condition before the condition becomes acute will hit the House floor tomorrow. It appears that SB 31 as it came over from the Senate has broad support among stakeholders. That doesn’t mean, of course, that there won’t be a spirited debate, but it does increase the chances that the bill will pick up any floor amendments that require it to be renegotiated in a conference committee.
The key provisions of the bill are as follows:
- Provides that a civil action against a physician or health care provider for a violation of any abortion statute is a Chapter 74 health care liability claim;
- Amends § 170A.002(b) and adds Subsections (c-1) and (c-2), Health and Safety Code, to: (1) clarify that if a pregnant woman has a life-threatening condition, the physician “may address a risk [or death or substantial impairment of a major bodily function] before the woman suffers any effects of the risk; (2) to permit the physican to act without waiting for the risk to become imminent, the woman first suffers physical impairmet, or the physical condition causes damage to the woman; and (3) define “life-threatening) to mean “capable of causing death or potentially fatal (the condition need not necessarily be the one “actively injuring the patient”)
- Adds § 170A.0021 to require the provider perform the abortion in a manner that provides the best opportunity for the survival of the unborn child (currently in § 170A.002(b)), except when, in the physician’s reasonable medical judgment, the manner of treatment would create a greater risk of death or substantial impairment of a major bodily function;
- Adds language to that section clarifying that a physician is not required to delay, alter, or withhold medical treatment if doing so would create a greater risk of the mother’s death or substantial impairment of a major bodily function;
- Adds § 170A.022 to provide that “reasonable medical judgment” in treating the mother includes removing an ectopic pregnancy and a dead, unborn child whose death was caused by a spontaneous abortion;
- Provides further liability protection if the death or injury to an unborn child resulted from treatment provided to the mother based on a physician’s reasonable medical judgment if the death or injury was accidental or unintentional;
- Clarifies that a necessary abortion performed during a medical emergency does not subject a physician to liability;
- Adds § 171.2011 to provide that the following do not constitute aiding or abetting an abortion: communication between providers for purposes of arriving at a reasonable medical judgment; communications between a provider and a patient for the purpose of arriving at a reasonable medical judgment; communication between a provider and attorney relating to an exception; communication between a treating physician and any other person relating to performing an abortion for which the physician has determined as an exception; or providing products to a patient or treating physician relating to performing an excepted abortion;
- Broadens the definition of “ectopic pregnancy” to include an implantation of a fertilized egg or embryo in an abnormal location in the uterus causing it to be non-viable or in a scarred portion of the uterus;
- Allows the performance of an emergency abortion in an unlicensed facility;
- Clarifies that the TMB cannot discipline a physician for performance of an abortion in response to a medical emergency;
- Repeals sections made unnecessary by the new statute;
- Directs the State Bar of Texas and Texas Medical Board to develop CLE and CME programs regarding the regulation of abortion.
SB 31 is a priority project of TCJL and represents the fruits of months of dedicated efforts by TCJL General Counsel Lisa Kaufman to reach consensus. Given the extreme political sensitivity of the issue on all sides, the final work product is a remarkable achievement that will save women’s lives. If you get the chance, drop Lisa a note of appreciation for the immense amount of time, patience, and tenacity necessary to get SB 31 across the finish line.
