Texas Abortion Law: Understanding The Exceptions

Abortion laws in Texas are among the most restrictive in the US. The state prohibits abortions in most cases, with exceptions made only when the pregnant person's life is at risk or they face substantial impairment of a major bodily function. However, the law is written ambiguously, and attempts to clarify and codify these exceptions have been rejected by Republican lawmakers. This has resulted in expecting mothers with health complications either leaving the state or being forced to give birth while jeopardising their health.

Ectopic pregnancies

Texas law prohibits abortions unless the pregnancy places the woman at risk of death or "substantial impairment of a major bodily function". The Texas Heartbeat Bill, which became state law in 2021, bans most abortions once cardiac activity is detected, which is usually around six weeks into a pregnancy.

The Texas abortion law includes an exception for ectopic pregnancies. However, the law also prohibits the use of abortion-inducing drugs after the seventh week of pregnancy, and two of these drugs, misoprostol and mifepristone, are the only medications recommended for treating an early pregnancy loss. This has created uncertainty and confusion for physicians, who fear prosecution if they provide treatment for ectopic pregnancies.

In 2021, a pharmacy in Texas informed several OB-GYNs that it would no longer fill prescriptions for methotrexate, a drug used to treat ectopic pregnancies, citing the state's abortion laws. This has caused concern among medical professionals, who worry that fears about the Texas laws have already delayed care.

Despite the exception for ectopic pregnancies in the Texas abortion law, the vague and unclear language in the legislation has created fear, stigma, and confusion, increasing barriers to care.

Miscarriages

In Texas, abortions are banned with certain exceptions. Texas law prohibits abortions unless the pregnancy places the woman at risk of death or "substantial impairment of a major bodily function". However, the law does not define what constitutes a "substantial impairment of a major bodily function".

In the case of a miscarriage, Texas law allows for the removal of a dead fetus or embryo, but pregnant people who are actively miscarrying may be denied care if there is still detectable fetal cardiac activity or until the miscarriage puts the pregnant person's life in danger. This means that people who are miscarrying may not be able to receive care to manage their pregnancy loss unless it becomes a medical emergency.

For example, in one case, a pregnant woman from Texas went to the hospital after experiencing sharp pain and bleeding. She was informed that her fetus had likely stopped growing a few weeks prior and that it had very faint cardiac activity. Despite the pain and blood loss she was experiencing, she could not receive the regimen of mifepristone and misoprostol commonly prescribed to pregnant patients who are miscarrying. Instead, she had to wait for the miscarriage to progress without medical intervention, increasing her medical risk.

The interpretation and application of Texas's abortion laws can vary and create confusion among patients and providers. The laws' vague language puts physicians in a difficult situation when their patients need an abortion to treat a condition that jeopardizes their health.

Rape or incest

Texas abortion law prohibits abortions unless the pregnancy places the woman at risk of death or "substantial impairment of a major bodily function". There is no exception for rape or incest. However, the perpetrator of rape, sexual assault, or incest cannot sue the victim or anyone who provided or assisted the victim in receiving an abortion.

While there is broad support for legal access to abortion in cases of rape or incest, 10 out of the 21 US states with abortion bans or gestational limits do not have an exception for pregnancies resulting from sexual assault. In the 11 states with rape and incest exceptions, low provider availability, law enforcement reporting requirements, and early pregnancy gestational limits can make access to abortion care unattainable for pregnant survivors of sexual assault.

In the 5 states with rape or incest exceptions and total abortion bans (Idaho, Indiana, Mississippi, North Dakota, and West Virginia), exceptions are limited to the earlier stages of pregnancy. For example, West Virginia's ban has an exception for pregnancies resulting from rape or incest, but only up to 8 weeks LMP (Last Menstrual Period) for adults, typically about 4 weeks after a missed period.

Most rape or incest exceptions require the involvement of law enforcement, which can restrict abortion access for those who have become pregnant as a result of sexual assault. In 5 of the states with rape or incest exceptions – Florida, Georgia, Idaho, Mississippi, and West Virginia – pregnant people must report the sexual assault to law enforcement before they can receive abortion care. Many of these states also require that the pregnant person provide the physician with a copy of the report ahead of receiving care.

Experts and advocates argue that these requirements can delay care and restrict access to abortion for survivors of sexual assault. They also note that the tight deadlines attached to reporting requirements may not be realistic for people dealing with trauma.

Lethal foetal anomalies

The state of Louisiana is the only state with a comprehensive list of conditions that fall under this category. Other states, like Indiana, provide some general criteria, such as a life expectancy of less than three months for the baby after birth.

In Texas, abortion is banned unless the pregnancy places the woman at risk of death or "substantial impairment of a major bodily function". The term "substantial impairment of a major bodily function" is not defined in the Texas abortion law.

The Texas abortion law does not explicitly mention lethal foetal anomalies as an exception. However, it is possible that in certain cases, a lethal foetal anomaly could be interpreted as a situation where the life of the pregnant woman is at risk, and thus, an exception could be made.

The interpretation of the law and the determination of whether an exception applies are not up to the treating physician but are decided by lawyers or the courts. This lack of clarity and the narrowness of the exceptions can deter physicians from providing abortion care in Texas.

Life-threatening physical conditions

Texas abortion law prohibits abortions unless the pregnancy places the woman at risk of death or "substantial impairment of a major bodily function". The law states that a licensed physician must perform the abortion and must try to save the life of the fetus unless doing so increases the risk of the pregnant patient's death or impairment.

The Texas Supreme Court has ruled that the law does not violate the constitution, and that it is the physician's responsibility to determine whether a pregnant woman has a life-threatening physical condition that necessitates an abortion to save her life or prevent serious risk of substantial impairment of a major bodily function.

The specific conditions under which abortions are permitted in Texas include:

• When the patient is at risk of death due to the pregnancy.
• When the patient is at risk of "substantial impairment of a major bodily function" due to the pregnancy. This term is not defined in the law, but it is left to the physician's judgment to determine when this exception applies.
• When the patient has a life-threatening condition and is at risk of death or substantial impairment of a major bodily function if the abortion is not performed.

The Texas abortion law also provides an affirmative defense for doctors and healthcare providers who perform abortions in the case of ectopic pregnancies or premature rupture of the amniotic membrane in a pre-viable embryo.

While the law does not explicitly define what constitutes a life-threatening physical condition, it is left to the physician's medical judgment to determine when an abortion is necessary to protect the life or health of the pregnant patient.

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