Texas Right to Life: Law Allows Doctors to ‘Follow Standard Medical Practice’ in Life-Threatening Situations

The Charlotte Lozier Institute, a research affiliate of Susan B. Anthony Pro-Life America, published a paper on July 26 discussing a variety of (rare but real) medical conditions in which life-of-the-mother exceptions to abortion laws apply.

Dr. Ingrid Skop, a co-author of the paper and pro-life obstetrician in Texas, discussed one of those conditions in greater detail with me in an article for the latest issue of National Review: 

Some advocates of a right to abortion and doctors have said that the law leaves unclear whether they need to wait until a woman’s condition becomes dire before delivering, but that was not a requirement of abortion laws before Roe, and it is not a requirement of abortion laws after Dobbs. Paul Linton, a constitutional lawyer who formerly served as general counsel for Americans United for Life, told me in a phone interview that life-of-the-mother exceptions in laws banning abortion “do not have any requirement of imminency or immediacy” of a threat to the mother’s life.

Skop gave the example of a woman whose membranes rupture — her water breaks — before viability, when it is appropriate to offer immediately to deliver the baby. “I say this as a pro-life physician: It is appropriate to deliver at that point. Because we know that likelihood that four days, six days [later], she’s going to be clinically infected,” and that infection can lead to potentially fatal sepsis. She added: “We know that the likelihood this child was going to make it to be born alive, to stay alive, not die in the neonatal period, is super low.” There is no need to wait until day four or day six; the delivery may occur on day one.

Yet there was a troubling American Journal of Obstetrics and Gynecology pre-proof article released at the end of June that reported two major hospitals in Dallas had stopped offering the option of immediate delivery in these circumstances following the enactment of the Texas Heartbeat Act in September 2021. Those hospitals offered only “expectant management” of the mother’s condition, which is associated with greater risks to the mother. (Expectant mothers will sometimes choose to take these risks — rather than deliver immediately — despite the very low odds that the baby will survive.) […]

But it was legal to offer lifesaving treatment before Roe, and Skop says there is no good reason to believe it is illegal to offer such lifesaving treatment after Dobbs: “If [the mother] wants delivery at the time of initial diagnosis, it is the standard of care to do so and is allowed by all state pro-life laws.”

John Seago, president of Texas Right to Life, said in a phone interview with National Review on Friday that he agrees with Dr. Skop’s analysis in the passage above. “Our law gives the flexibility for doctors to follow the standard medical practice and to make that call like Dr. Skop is talking about,” Seago told me.

“I don’t think it’s prohibited to take action immediately” to induce delivery in this situation, Seago said. “Those ruptured membranes are the physical condition that could jeopardize her physical life. Nobody’s arguing that you’ve got to wait until it’s really bad.”

Seago’s endorsement of Skop’s analysis is important because some prominent advocates of a right to abortion have pointed to earlier comments made by Seago as evidence that pro-life advocates believe doctors must wait until a mother’s life is in imminent peril. Seago told the New York Times in an article published on July 17 that Texas law prohibits a doctor from acting on the belief that “I want to cause the death of the child today because I believe that they’re going to pass away eventually.”

But Seago says that comment has been misunderstood. “I was talking about miscarriage, not a medical emergency,” Seago tells me. In a case in which an unborn child is diagnosed in utero with a condition in which the child will likely die later in pregnancy or shortly after birth — but the life of the mother is not in danger — Texas law does not permit an abortion. But in a medical emergency, Texas law allows doctors to “follow the standard medical practice,” Seago said.

It’s important that Seago has clarified the issue now because advocates of a right to abortion have suggested that hospitals are justified in changing their standards of care in this life-threatening situation because they are reasonably afraid of civil lawsuits. But fears that frivolous civil lawsuits would be filed under Texas’s abortion law now seem overblown: In the eleven months that the Texas Heartbeat Act has been in effect, Seago says he is only aware of one person who has been sued, and that was a case in which an abortion doctor published a September 18, 2021 article in the Washington Post that suggested he had performed an abortion not permitted by Texas law. That op-ed was a deliberate attempt to draw another legal challenge to the law. In the extremely unlikely event that a doctor faced a civil lawsuit for immediately inducing delivery in this situation, the defense — now formally endorsed by the largest national pro-life group and the largest pro-life group in Texas — would be airtight. 

One more thing: While some advocates of a right to abortion have claimed the term “medical emergency” is not defined in Texas law, that claim is not true. The American College of Obstetricians and Gynecologists — an organization that opposes laws restricting abortion such as SB 8 in Texas — cites the Texas law’s definition of “medical emergency” here:

Medical emergency: An exception to the law exists only for a medical emergency. SB 8 amends Chapter 171, Health and Safety Code, which defines medical emergency as “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that, as certified by a physician, places the woman in danger of death or a serious risk of substantial impairment of a major bodily function unless an abortion is performed.”

As you can see, there is no requirement in the Texas law that a doctor must wait until the “life-threatening physical condition” puts the mother in imminent “danger of death” or “serious risk of substantial impairment of a major bodily function.” As Dr. Skop says, in cases where a mother’s water breaks before the baby can survive outside the womb, “If [the mother] wants delivery at the time of initial diagnosis, it is the standard of care to do so and is allowed by all state pro-life laws.” Read Skop’s full paper here.

Now that the confusion has been sown, of course, the most important question is what should be done to clear up the misinformation. Pro-life advocates such as Skop have called on both the Texas Medical Association and Texas Board of Medical Examiners to provide clarity for doctors and hospitals. Would it also make sense for the Texas attorney general to issue a statement that doctors and hospitals may continue to use the same standards of medical judgment and care when treating women with life-threatening conditions that they did before Dobbs (and before the Texas Heartbeat Act)? “Yeah, that’s one of the things that we’re looking at. There are attorney-general opinions that elected officials can [request],” Seago says. “I think it would be appropriate [for the elected officials] to do that. There is discussion about whether opinion is the right avenue or whether it is just a memo from the [attorney general] himself.”

“It’s going to take a lot of effort like that to overcome the misinformation and confusion being spread,” he says.