Protecting Patients & Physicians: Texas’ Proposed Abortion Law Fix
The legal landscape for Texas physicians navigating abortion services has been fraught with uncertainty since the Texas Heartbeat Act took effect in September 2021. Tony Bertolino, managing partner at Bertolino LLP and specialist in professional license defense, joins us to shed light on critical clarifications being proposed to this consequential legislation.
At the heart of this discussion lies the vague and ambiguous language in the current law that has left healthcare providers uncertain about when they can legally intervene in pregnancy-related emergencies without risking severe penalties. These penalties are no small matter—physicians face potential life imprisonment for criminal violations and civil penalties of up to $10,000 per abortion performed, plus attorney’s fees and court costs. Perhaps most concerning, the law allows any member of the public to file lawsuits against physicians alleged to have violated the abortion ban.
The proposed legislative changes aim to remove the term “life-threatening” as the threshold for medical intervention, instead empowering physicians to use their professional medical judgment to determine when an abortion is necessary to protect a patient’s health. This clarification acknowledges a fundamental reality: lawmakers drafting legislation often lack the medical expertise needed to make nuanced clinical judgments that physicians face daily.
Real-world implications of the current law’s ambiguity have already manifested in troubling ways, with hospitals requiring legal department reviews before approving emergency medical procedures, causing potentially dangerous delays in care. The proposed clarifications would allow doctors to prioritize patient care without the constant fear of prosecution hovering over their clinical decisions. While the bill enjoys bipartisan support, it must still navigate committee hearings and secure votes in both legislative chambers before reaching Governor Greg Abbott’s desk.
Whether you’re a medical professional practicing in Texas or simply concerned about healthcare policy, understanding these developments is essential. Stay informed, consult legal counsel when uncertainty arises, and advocate for clear understanding of your professional obligations in this evolving landscape.
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Track Senate Bill 31 (SB 31) using Texas Legislature Online – https://www.capitol.texas.gov/
Transcript
Speaker 1: 0:01
This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you need legal assistance about a legal problem, contact an attorney. Howdy and welcome to Know your Regulator. The podcast that inspires you to engage. I am your host, simone Murphree, and co-hosting with me today is Melissa Hooper. Hi everyone, we have a very important discussion today on some recent clarifications in Texas’s abortion law and how they impact medical professionals. This is really critical to understand and be aware of as a physician in Texas right now.
Speaker 2: 0:40
And to help us navigate this topic, we are joined by Mr Tony Bertolino, who is the managing partner here at Bertolino LLP, and he specializes in professional licensed defense. Welcome.
Speaker 3: 0:53
Tony Well, thank you. Thank you very much for having me and I’m excited to discuss this very important issue that directly impacts physicians and medical professionals throughout Texas. I do want to add, before we get deeper into this podcast, is I’m well aware that this is a very delicate and sensitive topic. So you know this podcast, like all our podcasts, we’re really presenting information to the public and letting them know and informing them about the laws, the regulations and the legal interpretations that affect their careers and businesses. So we won’t go into the politics behind it or the sensitivity of the topics. This firm, or anybody here, doesn’t take a position one way or the other, so I do want to throw that out as a sort of a caveat to the, to those viewers that are out there.
Speaker 1: 1:49
Yeah, absolutely, tony. This is just for educational purposes, just for informational purposes. We’re just going to give you the facts. So, tony, let’s start with an overview. Can you walk us through these recent legislative changes and what may have prompted them?
Speaker 3: 2:06
Absolutely Well, the current law that we have in Texas, which actually went into effect on September 1st of 2021, it’s called the Texas Heartbeat Act, and what this law did, or what this law does, is that it bans abortions if there is a what’s considered or called a fetal cardiac activity, which is a heartbeat in the fetus and that normally occurs approximately six weeks after pregnancy. You know, hence the name the heartbeat or the Texas Heartbeat Act. However, what happened with that law is that it used a lot of very vague and ambiguous language, which left physicians really uncertain about when they could legally intervene and perform abortions or not, and you know they really had. There’s a lot of vague language and doctors were very confused as to what constitutes a medical emergency, which, of course, has led to delays in care because of these legal consequences. And the new bill what it does is it aims to clarify that when medical professionals can act in cases of when there’s a medical necessity, to avoid any kind of criminal or civil penalties uh, to avoid, you know, any kind of criminal or civil penalties.
Speaker 3: 3:35
Um, you know, from the criminal side, you know doctors are, are very concerned because you know they’re, if they, if they don’t do what they’re supposed to do under the law and it’s not clear to them, and they perform abortions anyway. They could face, uh you know, criminal penalties such as life imprisonment, let alone civil penalties, which include up to a $10,000 fine for every abortion, as well as recovery of attorney’s fees and court costs. And what’s also interesting about this particular law is that it allows anybody in the public to file a lawsuit against physicians who violate this abortion ban. So there’s, you know, these doctors are very concerned, and rightfully so, as to you know what they can and cannot do under the law.
Speaker 2: 4:24
Thank you for that, and that definitely makes sense. So what specific changes are being made to clarify this law?
Speaker 3: 4:32
Well, it’s really it has a lot to do with the language, the clarification of certain language and definitions in the current law. One key update is removing the term of quote-unquote life-threatening as a threshold for medical intervention. Instead, now what the law states or what the proposed law states is that the physicians can use their medical judgment to determine when an abortion is necessary to protect a patient’s health and of course legislators when they created this law.
Speaker 3: 5:07
I’m not certain whether or not there were physicians and there probably were who were you know who drafted some of this proposed legislation, but many of them aren’t. Many of them are lawyers and they’re not doctors. They’re not, you know, in positions of you know, at the time of making those sort of judgment calls, those medicinal judgment calls that only doctors can do when they’re on site and they’re treating a patient. So really, that’s what it does. It clarifies a lot of what the law is and how it’s applied, and it also protects doctors from liability if they are acting in good faith and they’re not intentional in their acts. They’re not intentional in their acts.
Speaker 1: 5:48
And that seems like a really big step for medical professionals who have, you know, so far been hesitant due to that unclear language.
Speaker 3: 6:01
How does this affect them in real world practice? Well, as I mentioned before, you know there are consequences, severe consequences, if the law is violated. And what these new changes would ultimately do, in clearing up the language, it’ll provide some assurances or reassurances for the physician. So they can, you know, they can prioritize the patient care without you know, without fearing any type of civil or criminal prosecution. You know, these doctors have been really avoiding cases that could be legally questionable, you know, even if the patient, you know, is in danger. So what this bill does? It helps remove that hesitation, allows the doctors to do what they’re supposed to do and follow the hypocritical oath and to do no harm and protect the patient’s care.
Speaker 2: 6:51
That’s a crucial point. Have there been cases where hesitation has led to poor patient outcomes there?
Speaker 3: 6:58
has actually there have been reports of, you know, delayed care because these hospitals, you know they were hesitant to allow the, you know the care to move forward and they required, you know, their legal departments to review before approving these emergency medical procedures. So you know, really, you think about, you know how does that really provide good patient care if you have to go through these different levels of scrutiny and questions by a legal department and of course, this has put both the patients and the doctors in possible situations which you know would have an impact on the patient care? With this clarity in the language, in the laws, the physicians will be in a better position to make medical decisions without, you know, these legal uncertainties.
Speaker 1: 7:49
Yeah, and, like we’ve been saying, this is a big change. So let’s kind of look at where this bill stands right now. What is the current status of this legislation?
Speaker 3: 8:03
Well, currently the bill, you know, certainly has bipartisan support in Texas, but it still needs to go through the committee hearings. And of course these committee hearings are composed of lawmakers, experts and the public and they’re permitted, during these hearings, to speak very openly and even debate about language in the legislation or whether or not the legislation should pass. And of course it’s got to go through these committee hearings before reaching a vote in the Senate and in the House.
Speaker 2: 8:39
If the bill is to pass both Senate and in the House, what would the next steps be?
Speaker 3: 8:45
Well, afterwards, if it’s passed, it would then go to Governor Greg Abbott for his signature and, of course, if Governor Abbott signs that law or that proposed legislation, then it becomes law. However, if it doesn’t get past the committee and doesn’t get enough votes, you know it could die even before reaching Governor Abbott’s desk.
Speaker 1: 9:12
And if it doesn’t pass, then what would happen?
Speaker 3: 9:18
desk. And if it doesn’t pass, then what would happen? Well, the lawmakers will have to go back to the drawing board, really, and look for ways to introduce language in the legislation that would truly result in bipartisan support. They’d be able to reintroduce that proposed legislation in future legislative sessions. Of course, what they’re going to need to do as well if it doesn’t pass, and to make sure that there is good bipartisan support is they may have to make some adjustments or changes in the proposed legislation to gain broader support.
Speaker 2: 9:52
Gotcha. Well, I feel this has been very insightful discussion and a hot topic in today’s picture. So before we close for the day, Tony, what final advice would you provide for medical professionals trying to stay compliant?
Speaker 3: 10:07
You know, I think it’s very important that you know medical professionals, you know licensed physicians, you know they stay informed about these legislative changes. Make sure they’re mindful of these changes. Make sure they’re mindful of new laws and changes to the current law, because, at the end of the day, they’re going to be responsible for understanding and knowing the law, no matter what I mean. You know there are. You know ignorance of the law is. There’s no excuse for that is an old adage used, and that applies here as well.
Speaker 3: 10:43
Another thing that I recommend is, if necessary, work with a legal counsel, work with an attorney when you have doubts as to your understanding of not just the current law that’s in place now, but any changes in the near future, and you know and do what you can to really advocate for you know, for a good understanding of what these changes are, are in the law. At the end of the day, you’ve, you know you’re responsible for, you know not just your license to practice medicine and protecting the patients, but you’re also, you know, responsible for making sure that you avoid any type of civil or criminal liabilities.
Speaker 1: 11:27
Fantastic advice, mr Bernalino, thank you very much for joining us today.
Speaker 3: 11:32
It was my pleasure.
Speaker 1: 11:34
And thank you to our viewers for tuning in. For more information on this bill, you can visit TexasLegislatureOnlinecom. There you can track this bill’s progress, see its history and more, and be sure to like, subscribe and follow. Know your Regulator for more continued updates on the changes in your professional landscape. Regulator for more continued updates on the changes in your professional landscape. Until next time, stay inspired and continue engaging with your regulatory agency. Know your Regulator the podcast that inspires you to engage.