by Cassandra Jaramillo and Lizzie Presser
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The Texas Senate has unanimously passed legislation that aims to prevent maternal deaths under the state’s strict abortion ban.
Written in response to a ProPublica investigation last year, Senate Bill 31, called The Life of the Mother Act, represents a remarkable turn among the Republican lawmakers who were the original supporters of the ban. For the first time in four years, they acknowledged that women were being denied care because of confusion about the law and took action to clarify its terms.
“We don’t want to have any reason for hesitation,” said Republican state Sen. Bryan Hughes, who authored the state’s original abortion ban and sponsored this reform with bipartisan input and support. Just last fall, he had said the law he wrote was “plenty clear.”
The bill stops short of removing what doctors say are the ban’s biggest impediments to care, including its major criminal penalties, and doesn’t expand abortion access to cases of fetal anomalies, rape or incest. Sen. Carol Alvarado, the Democratic lawmaker who co-authored the bill, said that its limits were a “real hard pill to swallow” but that it could still make a difference. “I believe this bill will save lives,” she said.
ProPublica’s reporting showed how doctors in states that ban abortion have waited to intervene in cases where women ultimately died of high-risk complications.
To address that problem, Senate Bill 31 states that a life-threatening medical emergency doesn’t need to be “imminent.” It also says doctors can terminate ectopic pregnancies, which occur when the fertilized egg implants outside of the uterine cavity. It would allow for a pregnant patient to receive cancer treatment, Hughes said, even if doing so threatened the viability of a fetus.
The bill also clarifies that medical staff or hospital officials can discuss termination with patients without violating a provision of the law that criminalizes “aiding and abetting” an abortion. It had been unclear to doctors whether simply discussing the option could lead to steep criminal penalties; patients have reported not being able to get straight answers from their providers about their prognosis and options for treatment.
It remains to be seen how the bill, if made law, would be interpreted by doctors and hospitals, and whether risk-averse institutions would still delay care during pregnancy complications.
Many reproductive rights advocates are skeptical given that the bill does not explicitly address many high-risk pregnancy complications. The most common one in the second trimester, previable premature rupture of membranes, or PPROM, occurs when someone’s water breaks early. In these cases, the chance of the fetus surviving is low, but delaying a pregnancy termination leaves the patient at risk of infection, which can lead to sepsis, a potentially deadly condition. Since the state banned abortion, lawyers at many hospitals across Texas have advised physicians not to empty the uterus until they can document signs of infection — an indication of a life-threatening emergency.
The death of Josseli Barnica, which ProPublica reported last year, reveals the dangers of forcing miscarrying patients to wait for care. Diagnosed with an “inevitable” miscarriage at 17 weeks, she showed symptoms similar to PPROM without an official diagnosis — her water had not yet broken. While stable, she was made to wait 40 hours until the fetal heartbeat ended before doctors induced delivery. She later died of sepsis, which medical experts say she likely developed because of the wait.
In addition to documenting cases in which women died of sepsis, ProPublica has shown how rates of the potentially deadly complication spiked by more than 50% statewide in second-trimester pregnancy-loss hospitalizations after Texas banned abortion.
Officials with the Texas Medical Association, the Texas Hospital Association and major anti-abortion groups — Texas Right to Life, Texas Alliance for Life and the American Association of Pro-Life OB-GYNs — told ProPublica they believed that this bill would now allow doctors to offer a termination at the point of a PPROM diagnosis, before infection set in.
Dr. Zeke Silva, chair of the Texas Medical Association’s Council on Legislation, included PPROM on a list of potentially life-threatening conditions he believed may fall under the bill’s clarified exception. The list, which is not exhaustive, includes preeclampsia, renal failure, liver failure, cardiac disease, pulmonary hypertension and neurological conditions. He added that decisions to intervene because a medical condition could be life-threatening “are, by definition, subjective, based on multiple clinical considerations” and must be based on “sound medical judgment.”
However, ProPublica spoke with six legal experts who said they were unsure whether hospitals, wary of litigation or penalties, would interpret the bill to mean that doctors can offer a termination to patients with PPROM.
Some PPROM patients can remain pregnant for weeks and not develop infections, while others can contract an infection and deteriorate very quickly, noted Molly Duane, a senior staff attorney at the Center for Reproductive Rights. “I could see some doctors saying this means, ‘I have more leeway to intervene in all PPROM cases,’ and others saying, ‘I still don’t know, so I’ll wait until signs of infection.’”
The largest association of OB-GYNs, the American College of Obstetricians and Gynecologists, said in an emailed statement that it did not support the bill: “This bill would keep Texas’ abortion ban in place and we strongly oppose the abortion ban and will continue to do so.”
Yesterday, the Texas Senate also passed Bill 2880, which would authorize civil lawsuits against anyone in or outside of Texas who distributes or provides abortion medication to someone in the state. It is expected to face pushback in the state House.
The Life of the Mother Act now goes to the House, where it must be voted out of committee before it heads to the House floor. Both chambers would need to agree on a final version before the governor could sign it into law.
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