Texas GOP senator files bill to clarify abortion ban, expand protections in emergencies

A new bill by the author of a sweeping Texas abortion ban would give doctors more leeway to end pregnancies during medical emergencies, a highly anticipated proposal that comes after reports of increased sepsis rates and several avoidable maternal deaths.

Filed Friday afternoon by state Sen. Bryan Hughes, R-Mineola, the “Life of the Mother Act,” or Senate Bill 31, would strike language in Texas’ post-Roe abortion ban that requires pregnant patients to have a “life-threatening condition” before doctors could legally induce an abortion, which some physicians said caused unnecessary suffering and heightened medical risks, according to the bill's text. It also would clarify that Texans can access abortions when they're at risk of a "substantial loss of a major bodily function," such as their fertility, if the pregnancy is carried to term.

The proposal would allow doctors to end a pregnancy when delaying care would put the pregnant patient at greater risk of death. It does not add exceptions for rape, incest or fatal fetal diagnoses, dashing the hopes of some abortion rights advocates.

Lt. Gov. Dan Patrick on Thursday designated the measure as one of the Senate’s 40 priority bills, significantly increasing its likelihood of Senate passage, and veteran Republican Rep. Charlie Geren of Fort Worth filed an identical companion bill, House Bill 44, in the lower chamber Friday.

In an interview with the American-Statesman on Friday, Hughes said SB 31 is intended to "remove any excuse" for doctors not to treat pregnant patients whose lives are in danger.

"In most cases, doctors and hospitals are getting this right, but getting it right in most cases is not enough," Hughes said, citing statistics that show around three abortions per month take place under the life-of-the-mother exception. "We want to make sure that no mom has to go through that."

Hughes acknowledged that media reports and other accounts have revealed that in some cases "mothers were not getting treatment and they should have under the law. So this bill is to make the law even clearer, and to require that doctors and hospitals get trained on the law."

The third-term senator in 2021 led the Legislature’s passage of Senate Bill 8, the “Heartbeat Act,” which banned abortions after around six weeks of pregnancy and authorized private citizens to sue people suspected of performing those abortions beginning in September of that year.

Hughes' new proposal seeks to address inconsistencies between SB 8 and the state's abortion trigger ban, HB 1280, which prohibits all but lifesaving abortions after the U.S. Supreme Court in July 2022 reversed Roe v. Wade, the landmark decision that had guaranteed a national right to an abortion. HB 1280 — which carries penalties for doctors including the loss of their medical license, fines of no less than $100,000 and sentences of up to life in prison — defines a medical emergency as a life-threatening condition.

SB 31 also would strengthen protections for pregnant Texans who experience premature water breaks and ectopic pregnancies, both of which can lead to life-threatening complications.

State Rep. Ann Johnson, D-Houston, worked with Hughes in 2023 to create a legal defense for doctors who treat women in those cases. SB 31 is a significant step forward, the Democratic attorney and former prosecutor told the Statesman.

"Our medical communities are desperate for relief and protection ... so that they can practice reasonable medical judgment in the face of pregnancy complications," said Johnson, whose district includes the renowned Texas Medical Center in Houston. "This bill goes a long way to putting doctors back in the position of acting immediately."

SB 31 and HB 44 would also require physicians who treat pregnant patients to complete at least one hour of “continuing medical education” centered on Texas’ abortion laws and would make a course on the statutes available to Texas attorneys for free.

Bill's filing comes after years of advocacy

The introduction of SB 31 on Friday — one hour before the legislative session’s filing deadline — comes after years of calls from Texas women, physicians and reproductive rights advocates for change and clarification to the state's near-total abortion ban.

In March 2023, 20 Texas women and two OB-GYNs sued the state over its abortion bans, arguing that the exceptions were too vague and too narrow to allow doctors to intervene before a patient reaches the point of no return. A number of the plaintiffs had left the state to obtain abortions after doctors said their fetuses would not survive and carrying the pregnancies to term posed risks to their health and fertility.

One of the women, Amanda Zurawski, is an Austin resident who nearly died of sepsis after doctors said they could not legally end her pregnancy. The lawsuit ended with the state Supreme Court ruling in Texas' favor and finding that the law required a "life-threatening condition," but not imminent death, for a physician to intervene.

The case of another woman, Dallas mom of two Kate Cox, prompted the Texas Supreme Court in December 2023 to urge the executive branch to clarify the state's abortion ban. The Texas Medical Board eventually issued additional rules in June in response to a January 2024 petition from two attorneys and veteran Capitol lobbyists, Amy and Steve Bresnen.

And more recently, in November, 111 OB-GYNs said the deaths of two Texas women who were denied abortion care during miscarriages or infections — Josseli Barnaca and Nevaeh Crain — were evidence that "the law does not allow Texas women to get the lifesaving care they need." Investigative news nonprofit ProPublica first revealed the women’s deaths and later reported on a third maternal fatality — that of Porsha Ngumezi.

The Bresnens, whose petition to the Texas Medical Board put them at the forefront of efforts to ensure pregnant patients could end their pregnancies in serious medical emergencies, praised SB 31 and HB 44.

Amy Bresnen told the Statesman on Friday that the twin bills are "probably the most important ... of the session, because (they) will literally save lives."

The Bresnens, who are married, advocated for the bills as representatives of the Texas Campaign for Mothers.

"We're very gratified that Senator Hughes and Representative Geren have taken the leadership on this very important issue to Texas women and the people who love them," Steve Bresnen said.

Aside from this proposal, Hughes has backed several measures to crack down on abortion. The Republican senator on Friday filed a bill to let Texans sue organizations that mail abortion-inducing drugs into Texas, SB 2880, which would also make it a crime to pay for a Texas woman's "elective abortion." The law would "appl(y) extraterritorially to the maximum extent permitted by the Texas Constitution or federal law."  

Johnson told the Statesman that she and other Democrats will continue to push for broader abortion rights this session and in the future.

"I will continue to advocate that government should leave this decision to women and health care professionals in general, but I'm grateful" for SB 31 and HB 44, Johnson said.