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Texas doctors say the recent abortion ruling leaves them in a gray area

SCOTT SIMON, HOST:

This month, a Texas woman sued her state for the right to an abortion in a first-of-its-kind challenge since Roe v. Wade was overturned. Her pregnancy posed a threat to her health and future fertility. The diagnosis for her fetus was catastrophic. In the wake of the case, doctors say that urgent questions about their rights to perform emergency abortions remain unanswered. Olivia Aldridge from member station KUT reports.

OLIVIA ALDRIDGE, BYLINE: When 31-year-old Kate Cox sued the state of Texas for the right to get an abortion under the emergency medical exception to the state's abortion law, her case felt all too familiar to Dr. Leah Tatum. An OB-GYN practicing in Austin, Texas, Tatum has had patients whose fetuses were diagnosed with conditions that are almost always fatal, just like Cox. But she couldn't give them the option of terminating their pregnancy. It just wasn't clear if it was legal.

LEAH TATUM: I think that in Texas, we can do better. I think it is sad to practice women's health in a state that has made it so hard to take care of patients.

ALDRIDGE: The Texas Supreme Court ultimately denied Cox's petition when it overturned a lower court order that had initially gone her way. Cox ended up leaving Texas to seek an abortion. The higher court's opinion boiled down to this. Courts are not responsible for deciding if a pregnant person's condition meets the standards for an emergency abortion. Physicians are - people like Dr. Tatum.

TATUM: It felt like what they did was they kind of punted it back, you know, saying, we're not the physicians, you know, who are the ones to make a call that it's, you know, medically necessary to step in for her.

ALDRIDGE: Texas law allows the procedure only if a pregnant woman has, quote, "a life-threatening physical condition that carries danger of death or risks impairing a major bodily function." Where exactly is the line of what counts as life-threatening? Well, doctors are told to use reasonable medical judgment. But if they get it wrong, they can face 99 years in prison, $100,000 in fines and the loss of their medical license. For many doctors, including Tatum, those risks are too steep.

TATUM: The law is written in such an ambiguous way that there are always going to be cases where you're apprehensive about providing that care because nobody wants to end up in criminal court.

ALDRIDGE: Although the Texas Supreme Court pinned responsibility on doctors, it also said the Texas Medical Board, a state agency that regulates medical practice in Texas, could offer more specific guidance. To Elizabeth Sepper, a reproductive law expert at the University of Texas at Austin, this amounts to confirmation that the exception lacks clarity.

ELIZABETH SEPPER: I think that's an admission that we have a confusing complex of state abortion bans in place and that physicians can't understand them. And more to the point, I'm not sure the Texas Supreme Court can understand them.

ALDRIDGE: A Texas Medical Board spokesman declined to comment, citing pending litigation. But for an example of what guidance from the board might look like, Sepper says to look to Louisiana, which offers a list of conditions that make abortion allowable. Trisomy 18, the condition Kate Cox's fetus was diagnosed with, is on that list. But even if the Texas Medical Board offered something similar, Tatum says it wouldn't be enough for all the things that can go wrong in a pregnancy.

TATUM: We think that that would be better than where we're at right now. But you're never going to come up with an all-inclusive list - is the problem.

ALDRIDGE: Doctors are also keeping a keen eye on an upcoming decision from the Texas Supreme Court in another case, Zurawski v. Texas, in which plaintiffs are pushing for a binding interpretation that would allow physicians to use their, quote, "good-faith judgment" when assessing emergency abortion needs. In that case, lawyers from Texas Attorney General Ken Paxton's office have argued that it's physicians who should be sued if access to a medically necessary abortion is denied, not the state. Yet, following the district judge's decision in Cox v. Texas, Paxton's office also sent a letter to several hospitals threatening them and their staff with liability if they facilitated Cox's abortion. Eight Texas hospital systems and organizations contacted by NPR for a response to Paxton's letter declined to comment or did not respond. Again, here's law professor Elizabeth Sepper.

SEPPER: I think doctors knew they were between a rock and a hard place, and I think the confluence of the Cox decision and the position of the state of Texas in the Zurawski case makes clear that both the rock and the hard place are the state of Texas.

ALDRIDGE: And between that rock and that hard place, doctors have to keep doing their jobs. For NPR News, I'm Olivia Aldridge in Austin.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Olivia Aldridge