To expand abortion access in Texas, a lawmaker gets creative

Texas's Republican Governor Greg Abbott addressed a rally earlier this year, celebrating the abortion bans that took effect after the Supreme Court overturned Roe v. Wade.

"As long as I am governor of the great state of Texas, Texas will always protect the unborn," he told a cheering crowd.

So it may be surprising that just a few weeks ago, Abbott signed a law giving doctors leeway to provide abortions in Texas when a patient's water breaks too early and for ectopic pregnancies. There was considerably less fanfare for that signing.

The new law, which goes into effect Sept. 1, is the work of a Houston Democratic lawmaker who built bipartisan support to get the bill all the way to the governor's desk. How did she do it? For starters, the new law has no mention of the word "abortion."

Representing doctors, hearing about dangers

Texas State Representative Ann Johnson represents District 134, which includes the Texas Medical Center. She says after Texas's abortion bans took effect, her constituents would stop her when she took walks around the district.

"Many of them would say, 'I know who you are, I'm a physician,'" Johnson says. "And we'd talk about the concern that they had."

Doctors told her about how Texas's overlapping abortion bans and draconian penalties for physicians – including life in prison, $100,000 fines and loss of medical licenses – were creating life-threatening delays in care for women with complicated pregnancies.

Johnson says she felt like the physicians she talked to and her Republican colleagues used the word "abortion" in completely different ways. Doctors used abortion to describe any termination of pregnancy, including if the fetus had a fatal condition, or if the pregnant patient was facing a serious medical complication.

For politicians who oppose abortion rights, she says, "they believe abortion to be the elective procedure on a completely healthy fetus." Johnson believes the goal of the Texas abortion bans is to stop these "elective" abortions, but the laws do not make that distinction.

Doctors in a bind

Abortion is banned in Texas. The medical exception to Texas's abortion bans is extremely narrow. Doctors can legally provide abortions in the state only if a patient is "in danger of death or a serious risk of substantial impairment of a major bodily function."

When Texas doctors treat pregnant patients with serious complications that don't quite fit that definition, they have to choose between intervening early, with the risk they could be charged for violating the abortion ban, and delaying care, with the risk that their patient sues them for malpractice for not providing standard medical treatment.

"The doctors and the hospitals and their lawyers were reading all of the Texas [abortion] statutes, some of them from the early 1900s, and saying, 'Look, we can't tell you what to do here – the language is confusing, the terminology and the definitions are confusing,'" Johnson says.

The laws don't just affect OB-GYNs, Johnson says, pointing to a recent law that imposes criminal penalties on prescribers of certain medications that can cause abortions. She gives the example of methotrexate, a drug used to treat cancer and autoimmune disorders. It can also be used to treat ectopic pregnancy and for very early medication abortions.

"If you have a general practitioner or a dermatologist treating psoriasis or rheumatoid arthritis of a 34-year-old woman who has no intentions of getting pregnant, and then she gets pregnant six months later and that pregnancy terminates because of that medication," that doctor could get charged with a felony, Johnson says.

Confusion has hurt patients

A lawsuit against the state argues that language in the medical exception is vague and confusing, causing hospitals and doctors to delay care, which harms patients. The plaintiffs include 13 patients and two physicians, and they're represented by the Center for Reproductive Rights. The lead plaintiff, Amanda Zurawski, developed sepsis and nearly died when doctors delayed an abortion.

NPR has reported on many women in Texas whose lives were affected by the state's abortion bans, including several who are now suing the state. After her water broke too early, Elizabeth Weller, one of the plaintiffs, was sent home from a hospital until she showed signs of infection. Samantha Casiano, another plaintiff, had to carry a fetus with a fatal anomaly to term because she couldn't afford to leave the state. Delmy Chavez, who had emergency surgery when she had an ectopic pregnancy that caused internal bleeding, worried in the hours afterwards she would be accused of murder.

There's also research on the effects of delaying care. A study published last year documented the outcomes for 28 Texas patients whose water broke too early for the fetus to survive. They were not offered abortions when first diagnosed – instead their doctors waited for the fetal heart to stop or their condition to worsen. Nearly half of these patients developed a serious condition, including 10 who developed infections, five who needed blood transfusions, and one who required a hysterectomy.

A district court judge ruled earlier this month that Texas must stop enforcing its abortion laws when doctors are treating patients with serious pregnancy complications, but Texas appealed her decision and the bans are back in effect.

Even supporters of the bans seek clarity

These stories have concerned even some ardent supporters of the abortion bans. "Women are being hurt unnecessarily in the wake of physician confusion and refusal to intervene to protect a mother's life, even when all obstetricians agree that offering intervention is the standard of care," Dr. Ingrid Skop wrote in a blog post earlier this year. She is a San Antonio OB-GYN who works for the Charlotte Lozier Institute, part of Susan B. Anthony Pro-Life America. Skop was the only witness called by attorneys for the state in the Zurawski hearing last month.

In her blog post, she added that the Texas health department, the Texas Medical Board, the Texas Medical Association, and the Texas Hospital Association could all ward off these dangerous situations by educating and providing guidance to doctors and hospitals. "The prolonged silence of the medical, legal, and bureaucratic organizations that could end the confusion is unconscionable," she wrote.

State Senator Bryan Hughes, a Republican who represents northeast Texas, was also dismayed by some patient stories. He is the author of SB 8, the nationally known law that allows private citizens to sue people for "aiding and abetting" a Texas abortion.

In August 2022, Hughes wrote a letter to the Texas Medical Board asking for an investigation into "disturbing allegations" that patients with serious pregnancy complications were being sent home from the hospital without care. "Pregnancy complications such as these should be swiftly and reasonably treated to prevent or address a medical emergency determined by the physician," he wrote, asking the Texas Medical Board to issue guidance on this issue.

The Texas Medical Board, which is a defendant in the Zurawski case, declined NPR's request for comment, citing the pending litigation.

Rep. Ann Johnson does not agree that state agencies or organized medical groups could solve these problems with guidance. "You read the black letter of the law," she says. "When I open the book and it says, 'Abortion means,' you don't get to come later and say, 'Oh, I really thought abortion meant something else.'"

Since the statute did not clearly say that abortion in these circumstances was legal, she says, the only way to fix that was to fix the law.

'Masterful and discreet' lawmaking

Johnson is an attorney by profession. She says she had to think creatively about how to make the abortion laws work better for doctors and patients. She knew doctors needed to be able to intervene in complicated pregnancies. She also believed many of her Republican colleagues who voted for these laws did so without realizing the wide ranging impact they would have on medical care.

So a few weeks after the Texas legislative session started at the beginning of the year, she introduced a bill. Originally, the bill broadly allowed doctors to provide "medically necessary" services.

"We actually filed this bill early on in the session and nobody noticed it, which was by design," she says.

Since Democrats are in the minority in the Texas legislature, she had to figure out how to get bipartisan support.

The sponsor of the bill in the Texas Senate was none other than S.B. 8 author Sen. Bryan Hughes. Hughes has not responded to any of NPR's interview requests on multiple stories for months, but he did give an interview to National Review in June. "Texas law is already clear," he said, a talking point made frequently by supporters of the bans, including the Texas Alliance for Life. "But because some doctors and hospitals were not following the law, we wanted to remove any doubt and remove any excuse for not giving the care that the moms need in these cases."

Dr. John Thoppil, an Austin OB-GYN and past president of the Texas Association of Obstetricians and Gynecologists, calls the assertion that the law was already clear and that doctors are to blame for the uncertainty false. "If you put the threat of a felony case and losing your license in a very poorly written original law, it is irresponsible to shift that blame back to the physicians who are trying to take care of patients," he says.

In the legislature, Johnson says Hughes was a big help in lining up key supporters. "I'm glad that we were able to have honest conversations," she says. "This would not have happened without having him in the Senate get this through."

The final bill is not as broad as Johnson's original text. It outlines two conditions where doctors can provide abortions: preterm premature rupture of membranes (the medical term for when someone's water breaks too early) and ectopic pregnancy (which happens when a fertilized egg implants somewhere besides the uterine lining).

The bill passed with bipartisan support – in the Senate, it passed unanimously – and made it to the governor's desk in the last few days of the session. That's a "minor miracle" according to a blog post by George Christian, senior counsel at the Texas Civil Justice League, who wrote about helping to draft the legislation.

"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," he wrote.

Both the Texas Medical Association and the Texas Hospital Association told NPR they were involved in helping to pass the bill and were present when Governor Greg Abbott signed it into law. Hughes told National Review that "a number of pro-life groups" were also present at the signing. It is set to go into effect on September 1.

Rep. Ann Johnson says she's proud of H.B. 3058. She says no other piece of legislation that addressed abortions even got a hearing. "I think what was key about this legislation is that it did not have the term 'abortion' in it, and because of that, it did not become a political football."

Doctors react

Dr. Thoppil credits Johnson as "a tremendous advocate for women's health." He's happy with the new law and thinks it will be helpful. He says the two conditions mentioned are common complications that OB-GYNs see and that the law will help avert some of the heartbreaking circumstances patients have experienced since the bans took effect.

Dr. Austin Dennard, an OB-GYN in Dallas who is also a plaintiff in the case challenging Texas's abortion bans, is less enthusiastic. "If this leads to physicians feeling more comfortable practicing standard medical care, then I'm all about it," she says. "It's just such a small, little portion of reasons why patients need [abortion] care in pregnancy. It doesn't in any way grapple with the scope of all medical complications that can arise."

Johnson is aware of that criticism. "Yes, there are absolutely other pregnancy complications," she says. "This is what we can accomplish in this moment. In this moment, we could get bipartisan agreement of the recognition of ectopic pregnancy and ruptured membrane."

She's glad Governor Abbott signed the law. "To me, it is a first step," she says. "I just very strongly feel we need to do more."

Copyright 2023 NPR. To see more, visit https://www.npr.org.