Texas Tribune
Texas Medical Board silent on abortion laws
by Eleanor Klibanoff, The Texas Tribune – 2023-12-21 06:00:00
SUMMARY: The Texas Supreme Court requested the Texas Medical Board to clarify the state's abortion laws after rejecting Kate Cox's lawsuit to terminate her nonviable pregnancy. Despite the call for guidance, the medical board, led by Dr. Sherif Zaafran, opted to withhold action until ongoing court cases are settled. Many doctors feel existing guidance is insufficient to navigate abortion laws confidently. The board's typical role involves disciplinary actions against doctors violating standards of care, yet political and legal complexities, plus enforcement limitations, are causing uncertainty and hesitation among physicians facing abortion-related decisions. The medical community is advocating for legislative clarification to better serve patients facing complicated pregnancies.
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Last week, in rejecting Kate Cox's bid to terminate her nonviable pregnancy, the Texas Supreme Court called on the Texas Medical Board to offer doctors more guidance on how to interpret the state's abortion laws.
“While the judiciary cannot compel executive branch entities to do their part, it is obvious that the legal process works more smoothly when they do,” the justices wrote.
Dr. Sherif Zaafran, the board chair for the Texas Medical Board, declined to comment on the agency's plans, but said it was unlikely the board would intervene while other court cases were proceeding.
“We're going to hold back on getting involved in anything until all these issues, at least at the judicial setting, are resolved,” board chair Dr. Sherif Zaafran told The Texas Tribune. “It wouldn't be appropriate for us to start making any kind of movement or decisions while all that is out there still being adjudicated.”
As the licensing and disciplinary agency for Texas doctors, the medical board has the power to revoke a doctor's license for violating the state's abortion ban. The agency has, in the past, offered guidance to doctors on new and controversial topics, including COVID-19, and could “assess various hypothetical circumstances, provide best practices, identify red lines, and the like,” the Supreme Court said.
But many doctors, and the advocacy groups that support them, say additional guidance from the state medical board is not enough to allow them to feel confident performing an abortion in Texas.
“Medical emergency exceptions, the way they're written, don't work in real life,” said Molly Meegan, chief legal officer at the American College of Obstetrics and Gynecologists. “So it's very difficult for a medical board to give better advice than anyone else.”
Even a thorough list of medical conditions that would justify an abortion can't capture the complexities and nuances of every individual case, Meegan said, and the stakes are too high for doctors to try to guess.
While guidance from the agency might help doctors protect their licenses, it wouldn't stop a prosecutor from bringing criminal charges or the attorney general's office from pursuing fines north of $100,000.
“These decisions have to be committed to the discretion of the physicians, in consultation with their patients,” Meegan said. “We have to trust our physicians … and to argue that they need legislative supervision to do their job is both impractical and dangerous for women.”
But even as the Texas Medical Board tries to remain out of the abortion issue, its role as the doctor disciplinarian means it may be forced to deal with it one way or another. In September 2021, the agency received a complaint against a San Antonio OB/GYN who publicly flouted the state's six-week abortion ban. And in other states, the medical board has become a key part of enforcing strict abortion bans.
What is the Texas Medical Board?
The Texas Medical Board has 19 members — 12 doctors and seven members of the public, although only 16 spots are filled at the moment. The current board skews male, with only four women, and only one female doctor. There's one OB/GYN currently on the board.
Like most state medical boards, members are appointed by the governor. Gov. Greg Abbott, who has a long history of rewarding donors with plum positions on state boards and commissions, has put several big dollar donors on the medical board over the years.
Seven of the 16 current members have given Abbott more than $10,000 since 2013. Zaafran, the board chair, has given close to $100,000.
“There're many other Republicans that I have contributed to and for that matter, there're many Democrats that I've contributed to,” Zaafran said. “But as a board, we're independent.”
Zaafran, a Houston anesthesiologist, said the board is diverse in many ways, including politically, and he pointed to the board's COVID-19 guidelines, which he said were unpopular among some Republicans.
“If we're getting criticism from both sides, usually that probably means that we're fairly neutral, as much as we possibly can be,” he said. “We try to go by the science, by the facts.”
The agency's enforcement arm is primarily complaint-driven. Complaints against doctors are assessed by expert panelists in the same speciality, who determine whether the doctor violated the standard of care. The board can then determine what action to take against the doctor, up to and including suspension of their license. That ruling can be appealed through the State Office of Administrative Hearings or district court.
“The only guidance that we can offer or provide is asking our licensees, our physicians to follow what the standard of care is,” Zaafran said. “That standard care is typically not going to be adjudicated unless a complaint comes to us.”
But the board has, at times, offered guidance to doctors proactively, most notably during the COVID-19 pandemic.
“With COVID, they tried to give some guidance and let people know where the safe spaces were as they were making clinical judgments,” said Tim Weitz, former Texas Medical Board general counsel who now defends doctors facing disciplinary issues. “In this instance, I think they're going to just try to stay out of the political crossfire, no matter who encourages them.”
What role does TMB play in the abortion issue?
Since Texas banned nearly all abortions in summer 2021, dozens of women have come forward to say they were denied medically necessary abortions for their complicated pregnancies. These women say they should have qualified for an abortion under the state's narrow medical exceptions, but their doctors were too fearful or unclear on the law to perform the procedure.
In the first seven months of 2023, only 34 abortions were performed in Texas. Seth Chandler, a law professor at the University of Houston, said the law incentivizes doctors to delay or deny abortions and hope the patient travels out-of-state or finds another doctor.
“Whereas if they do perform the abortion, they may have a local elected prosecutor look over what's happened and decide to indict, and at that point, the physician's life is already pretty much ruined,” he said. “Which would you choose?”
In early December, 31-year-old Kate Cox filed a lawsuit, asking the court to allow her to terminate her nonviable pregnancy. She had been to the emergency room four times in the last month due to pregnancy complications, and had found an OB/GYN willing to perform the procedure if a judge signed off on it.
A Travis County district judge granted the abortion, but the Texas Supreme Court overturned that ruling, saying Cox did not qualify. In the ruling, the court said doctors do not need to “wait until the mother is within an inch of death or her bodily impairment is fully manifest or practically irreversible.” Nor does the doctor need to consult with other doctors to proceed.
“Rather, the exception is predicated on a doctor's acting within the zone of reasonable medical judgment, which is what doctors do every day,” the justices wrote.
Rick Snyder, president of the Texas Medical Association, said this ruling added more confusion for doctors.
“The Texas Supreme Court said over and over, this is up to physicians to make a decision,” Snyder said. “They're saying, this is in the hands of the physicians, but they also said this doctor does not have the right to perform an abortion. They stopped Ms. Cox's physician.”
While the court asked the medical board to step in and clarify the law, Snyder said that type of nonbinding guidance won't be enough to reassure most OB/GYNs handling these complicated cases.
“It might help build a defense if you find yourself in court, but we don't want to find ourselves in court,” Snyder said. “You might prevail, and this might be helpful in that, but you still have to take the time and the cost of getting a lawyer to defend yourself.”
Chandler, the UH law professor, said medical board guidance could serve as a deterrent for prosecutors considering whether to bring a case against a doctor, if the case is clearly within parameters the agency has laid out.
“It does not eliminate all possible risk for the doctor, but I'm not sure that's possible,” Chandler said. “What I think is sensible is to get rid of as much of the unnecessary risk as possible that exists as a result of the Texas laws today.”
Snyder would prefer to see the Legislature step in and clarify the laws. He pointed to HB 3058, a new law that established an affirmative defense for doctors who perform an abortion on a patient with an ectopic pregnancy or a previable premature rupture of membranes, as a step in the right direction.
But it'll be more than a year until the Legislature is back in regular session. The Texas Supreme Court is still considering a challenge to the medical exception in Zurawski v. Texas, but Chandler expects that ruling to offer as little clarity to doctors as the Cox ruling did.
With the Texas Medical Board not yet offering any guidance either, what options remain open to Texans facing complicated pregnancies, and their doctors?
“Frequent flier miles,” Chandler said.
Disclosure: Texas Medical Association and University of Houston have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune's journalism. Find a complete list of them here.
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The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Texas Tribune
Ted Cruz files bill to protect IVF
by By Eleanor Klibanoff, The Texas Tribune – 2024-05-20 09:45:47
SUMMARY: U.S. Senator Ted Cruz and Senator Katie Britt have introduced the IVF Protection Act to safeguard access to in vitro fertilization (IVF) amid changing anti-abortion laws. The bill aims to make states ineligible for Medicaid funding if they ban IVF. This legislative effort follows an Alabama Supreme Court ruling that classified embryos as protected human life, prompting some IVF providers to pause services. The Texas Supreme Court may also consider a case impacting IVF. Cruz, seeking reelection against Democrat Colin Allred, emphasizes IVF's importance for families. Texas Governor Greg Abbott supports clarifying state laws to protect IVF, while Senate Democrats and House Speaker Mike Johnson diverge on federal versus state jurisdiction.
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U.S. Sen. Ted Cruz of Texas is leading a charge to protect access to in vitro fertilization as conservative states scramble to figure out where IVF fits in the new anti-abortion legal landscape.
On Monday, Cruz and Sen. Katie Britt of Alabama, both conservative, anti-abortion Republicans, filed the IVF Protection Act, which would make states ineligible to receive Medicaid funding if they ban IVF.
This bill comes in response to a ruling from the Alabama Supreme Court earlier this year that said embryos are protected human life when it comes to the state's wrongful death statute. After that ruling, many IVF providers paused those services until the Alabama Legislature passed temporary protections.
The Texas Supreme Court is considering taking up a case that could “upend IVF in Texas,” experts say. A woman has asked the court to overturn previous court rulings that awarded her ex-husband their three frozen embryos in their divorce, arguing that Texas' new abortion laws require embryos to have the same rights as living children.
Almost as soon as the U.S. Supreme Court overturned Roe v. Wade in summer 2022 and allowed states to ban abortion, questions emerged about the legal status of IVF.
In a Wall Street Journal op-ed announcing this legislation, Cruz and Britt said Republicans want to “protect both life and IVF.”
“IVF has given miraculous hope to millions of Americans, and it has given families across the country the gift of children,” Cruz said in a statement. “I'm proud to partner with Sen. Katie Britt to ensure that couples in Texas and across the country have the opportunity to be loving parents, by ensuring that IVF is fully protected at the federal level.”
IVF is “profoundly pro-family,” the pair wrote in the op-ed. “Our bill will honor and support families seeking to welcome a new baby into their lives through IVF.”
Cruz is up for reelection this year, facing Democratic Congressman Colin Allred, who has made Cruz's support for Texas' abortion laws a key part of his campaign. In a statement after the Alabama court ruling, Allred said Cruz had done nothing to protect IVF, and his “dangerous record” on abortion and fetal personhood issues puts Texas families “rights and freedoms at risk.”
Texas Gov. Greg Abbott has expressed his support for IVF, saying he believes the Legislature will clarify state law to protect the procedure.
Meanwhile, in D.C., Senate Democrats have tried unsuccessfully to pass two bills to protect IVF access, and House Speaker Mike Johnson has said he believes this is an issue best left to the states.
Pointing out that 86% of Americans believe IVF should be legal, Cruz and Britt say this should be a bipartisan bill that protects “life, family and personal liberty.”
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The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Texas Tribune
Trump says Paxton would make good U.S. attorney general
by By Jasper Scherer, The Texas Tribune – 2024-05-20 08:47:03
SUMMARY: Former President Donald Trump is considering Ken Paxton, Texas' Attorney General, for the role of U.S. Attorney General if re-elected. Trump commended Paxton's abilities and loyalty, highlighting his legal challenge to the 2020 election results and his support during Trump's impeachment defense. Paxton was impeached for bribery allegations but acquitted, with Trump claiming credit for the outcome. Recent polls show Trump leading President Biden in key states. Paxton's legal issues have diminished following the dropping of securities fraud charges, although federal investigations continue. If nominated, Paxton's Senate confirmation faces partisan challenges and opposition from notable Republicans.
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Former President Donald Trump said he would consider tapping Ken Paxton for U.S. attorney general if he wins a second term in the White House, calling his longtime ally “a very talented guy” and praising his tenure as Texas' chief legal officer.
“I would, actually,” Trump said Saturday when asked by a KDFW-TV reporter if he would consider Paxton for the national post. “He's very, very talented. I mean, we have a lot of people that want that one and will be very good at it. But he's a very talented guy.”
Paxton has long been a close ally of Trump, famously waging an unsuccessful legal challenge to Trump's 2020 election loss in four battleground states. He also spoke at the pro-Trump rally that preceded the deadly U.S. Capitol riot in January 2021.
Paxton's loyalty was rewarded with an endorsement from Trump in the 2022 primary, which helped the attorney general fend off three prominent GOP challengers.
Trump also came to Paxton's defense when he was impeached last year for allegedly accepting bribes and abusing the power of his office to help a wealthy friend and campaign donor. After Paxton was acquitted in the Texas Senate, Trump claimed credit, citing his “intervention” on his Truth Social platform, where he denounced the proceedings and threatened political retribution for Republicans who backed the impeachment.
“I fought for him when he had the difficulty and we won,” he told KDFW. “He had some people really after him, and I thought it was really unfair.”
Trump's latest comments, delivered at the National Rifle Association's annual convention in Dallas, come after a series of recent polls have shown the presumptive Republican nominee leading President Joe Biden in a handful of key battleground states.
Paxton has also seen his political prospects rise in recent months, after prosecutors agreed in March to drop three felony counts of securities fraud that had loomed over Paxton for nearly his entire tenure as attorney general. The resolution of the nine-year-old case, along with Paxton's impeachment acquittal in the Senate last fall, has brought him closer than ever to a political career devoid of legal drama.
Still, Paxton's critics say he is far from vindicated. He remains under federal investigation for the same allegations that formed the basis of his impeachment, and he continues to face a whistleblower lawsuit from former deputies who said they were illegally fired for reporting Paxton to law enforcement. A separate lawsuit from the state bar seeks to penalize Paxton for his 2020 election challenge, which relied on discredited claims of election fraud.
If nominated, Paxton would need to be confirmed by the U.S. Senate. The chamber is narrowly divided along party lines, with Democrats holding a 51-49 majority. One of the most prominent Republican members, U.S. Sen. John Cornyn of Texas, has been an outspoken critic of Paxton, while Paxton has openly entertained the idea of challenging Cornyn in 2026.
Paxton is not the only Texan Trump has floated for a high-profile spot in his potential administration. In February, he said Gov. Greg Abbott is “absolutely” on his short list of potential vice presidential candidates. Abbott has since downplayed his interest in the job.
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Texas Tribune
These Texans aren’t taking buyouts despite repeated floods
by By Emily Foxhall, The Texas Tribune – 2024-05-20 05:00:00
SUMMARY: Recent floods in Harris County, Texas, have devastated homes along the San Jacinto River. Tom Madigan, who owns multiple properties, quickly started repairs without knowing the Harris County Flood Control District aims to buy out such flood-prone properties. The region has a longstanding buyout program to remove homes from high-risk flood areas, with about 800 out of 2,400 targeted properties purchased. However, buyouts are voluntary and often insufficient for low-income residents. Despite the program, many choose to stay due to affordability and community ties, while others like Madigan remain skeptical of receiving a fair offer.
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HARRIS COUNTY — After the floodwaters earlier this month just about swallowed two of the six homes that 60-year-old Tom Madigan owns on the San Jacinto River, he didn't think twice about whether to fix them. He hired people to help, and they got to work stripping the walls, pulling up flooring and throwing out water-logged furniture.
What Madigan didn't know: The Harris County Flood Control District wants to buy his properties as part of an effort to get people out of dangerously flood-prone areas.
Back-to-back storms drenched southeast Texas in late April and early May, causing flash flooding and pushing rivers out of their banks and into low-lying neighborhoods. Officials across the region urged people in vulnerable areas to evacuate.
Like Madigan's, some places that were inundated along the San Jacinto in Harris County have flooded repeatedly. And for nearly 30 years, the flood control district has been trying to clear out homes around the river by paying property owners to move, then returning the lots to nature.
The recent floods show why buyout programs can be important. These spots typically flood first and worse. Gov. Greg Abbott reported that hundreds of rescues took place in the state while the floods destroyed homes. A man drowned and a child was swept away into the floods. One Harris County resident described climbing on top of his motor home as the water rose before first responders rescued him.
But the disaster and its aftermath also illustrate why buyouts are complicated to carry out even in Harris County, home to Houston, which has one of the most robust buyout programs in the country. The flood control district has identified roughly 2,400 properties as current buyout candidates around the San Jacinto; the district and county have bought about 800 of them.
Nearly all of the district's buyouts are voluntary. If an owner doesn't want to sell, the district can't force them out.
Buyouts make sense for some people who can't be protected from floods, said Alessandra Jerolleman, director of research for the Center on Environment, Land and Law at Loyola University New Orleans College of Law.
But buyouts might not provide lower-income people enough money to get somewhere safer, she said, and they could lose important support like child care from nearby family or neighbors.
“It's not as though it's a guarantee of reducing risks to that family,” Jerolleman said.
People who live near the river and who have endured repeated floods explained that they've stayed because it's affordable and, most of the time, peaceful. Where else would they be able to buy anything like it? Some said they didn't think the government would offer them what they consider a fair price to sell their land. Some didn't know the buyout program existed.
Madigan started buying homes more than 15 years ago in the unincorporated River Terrace neighborhood because they were cheap. On Tuesday, the Houston firefighter drank a Heineken and grilled hamburgers for his work crew outside his most damaged house, which he rents to his brother. Sodden rugs baked in the sun on the driveway.
Madigan said he might have taken a buyout if it was a reasonable offer — but he doubted it would be. He said he needed to get the properties ready again for his renters. “I can't wait,” he said.
Two blocks away, water had swept through a yellow house Madigan rents to a family with a teenage son. One of the workers fixing the property, 21-year-old Omar Reyna, watched the family throw out pretty much everything they had. Piecing together new laminate flooring with his dad, Reyna kept thinking about a trash bag of Teddy bears and stuffed toys he tossed out for them.
He wondered if the parents had been saving the toys for another kid they might have in the future.
“The faster we get it done, the faster they can come back in here,” Reyna said.
Some people choose to live with the risk of flooding
The San Jacinto is the largest river in the state's most populous county. For years before Harris County's first floodplain maps were drawn up in the mid-1980s, people built homes near its banks. Even today, people can still build in the vast floodplain if the houses are high enough and have enough stormwater detention.
The flood control district tries to buy out homes in pockets of the floodplain that are deepest, said James Wade, manager for the district's property acquisition department. Those are places where engineers can't easily fix flooding problems.
Buyouts are meant to get people out of flood zones before their property floods again, not to help in the immediate aftermath of a disaster. The process is slow: In some cases, it can take 18 months or longer to approve a buyout application, Wade said. The district pays owners the market value or pre-flood value for their house, determined by a third-party appraiser, plus moving expenses and a supplement to help them get into a house out of the floodplain, Wade said.
“It's a very equitable, fair program,” Wade said — but still some people don't want to leave.
Those who stay learn to adapt. They build homes on stilts. They monitor the river level and watch for releases of water from the Lake Conroe dam upstream. Some know intimately the routine of rebuilding: gut the house, clean it, put it back together.
The floor of 49-year-old Sean Vincent's house in the Forest Cove neighborhood in northeast Houston is 15 feet above the ground. Three feet of water flooded it when Hurricane Harvey hit in 2017. This month, the floods reached five feet high on Vincent's property. He cleaned out his waterlogged ground-level shed with help from church members. On Tuesday, he was building new shelves for it.
But most of the time Vincent, who works in railroad traffic control, said he enjoys the space surrounded by tall trees with room for his three kids.
“It's just really not a major part of our life,” Vincent said of the flooding. “Yes, it's inconvenient. Yes, it's now happened to us twice in seven years … It's sort of a trade-off for us. And it is lovely out here.”
“Where are you going to go?”
Then there are those who stay because they don't see anywhere else to go.
Jack St. John, 67, a retired long-haul truck driver, moved to Northshore 43 years ago and has had to clean up after two floods. He worries any time flooding threatens, but the neighborhood's advantages keep him there: He has no water bill because he has a well. His taxes are reasonable. The neighborhood has a fish fry in the spring and a barbecue in the fall.
“You know, when you leave, where are you going to go?” he said. “What's it going to cost to buy into another place?”
Farther northeast, in the Idle Wild and Idle Glen neighborhoods, the floods forced some residents to sleep under tarps. On one largely forested street, boats were turned sideways or flipped upside down. A small building was lodged in the trees. A car was in the ditch.
For several years, Elvia Bethea, 68, has driven from her home in Humble to check on people and pets here, and pick up stray animals. On Tuesday, she and other volunteers gave John Gray, 50, bamboo yard torches to fight the many mosquitoes, plus two trays of chocolate-covered strawberries.
Gray said he couldn't afford to fix up his destroyed house. He earns a living printing labor law posters for businesses. His printers at home were destroyed.
Gray said he had never heard of the buyout program but would consider taking one.
“Who do I call?” Gray asked. “I don't have a clue.”
From the back of a white SUV, Bethea handed some hot dogs to Jose Tabores, 68, who lives on Gray's land in a trailer now filled with mud.
“I'm coming for dinner, remember!” Bethea teased him.
Nearby, 51-year-old Veronika Scheid had been sleeping in a wet tent. The flood washed the shipping crate she lived in down the road and into the trees — along with her and her neighbors' belongings.
At a low point, when Scheid was crying over all she lost, she found a pink-and-white beaded necklace with stitching in the shape of a “V,” like her name. At the end was a charm shaped like a house.
She was grateful the person who owned the land where she stayed hadn't taken a buyout. Otherwise she would have nowhere to go.
“At least we have this,” Scheid said.
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The post These Texans aren't taking buyouts despite repeated floods appeared first on TexasTribune.org.
The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
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