The Human Life Protection Act went into effect on Aug. 25, 2022, banning almost all abortions in Texas. There have been reports in the media and from legislators that some physicians are confused regarding the legal definition of abortion and consequently are uneasy treating women with certain pregnancy complications or those who have miscarried, for fear of being in violation of the law. Women seeking treatment for high-risk pregnancies, or who have lost or are in the process of losing their unborn babies, should not ever experience a delay in care or be subjected to undue mental and emotional strain caused by a physician’s uncertainty regarding what course of treatment is legally permitted under Texas law.

Catholic hospitals in Texas and throughout the country have been providing compassionate care for women and babies (born and unborn) for centuries without providing abortions or abortive procedures. [1] The new abortion definitions in Texas have not restricted their ability to continue to provide consistent care for these families. As the Church continues to accompany mothers and their children in this special way, we echo the exhortation of Pope Francis in Amoris Laetitia:

“Every child growing within the mother’s womb is part of the eternal loving plan of God the Father: “Before I formed you in the womb I knew you, and before you were born I consecrated you” (Jer 1:5). Each child has a place in God’s heart from all eternity; once he or she is conceived, the Creator’s eternal dream comes true.” No. 168, Amoris Laetitia

To educate Catholic healthcare providers and families on morally licit procedures, the Texas Catholic Conference of Bishops recommends the National Catholic Bioethics Center’s recent publication in Ethics and Medics, Medical Interventions in Pregnancy in Light of Dobbs. Several additional resources are available, including articles from the Catholic Health Association and Linacre Quarterly and summary statements from the NCBC on early induction of labor and ectopic pregnancy. For assistance with specific situations, we recommend consulting with your clergy or an ethicist in Catholic healthcare. We offer the following Texas specific information to put these procedures into context given our abortion statutes.

Texas Law

The definition of abortion is found in Chapter 245 of the Texas Health and Safety Code, §245.002:

(1)  "Abortion" means the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant [emphasis added]. The term does not include birth control devices or oral contraceptives. An act is not an abortion if the act is done with the intent to:

(A)  save the life or preserve the health of an unborn child;

(B)  remove a dead, unborn child whose death was caused by spontaneous abortion; or

(C)  remove an ectopic pregnancy.

Therefore, procedures, treatments, and medications performed in good faith medical judgment or reasonable medical judgment, with the intent to prevent the death or substantial risk of death to a pregnant woman due to a diagnosed medical condition, are permitted even if they will or might cause the death of an unborn child. In these cases, the intent is to provide appropriate medical care, not to cause the death of the unborn child. However, the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the mother and the life of her unborn child in a manner consistent with reasonable medical practice.

Moreover, with respect to the new law (the Human Life Protection Act of 2021, commonly known as a “trigger” ban) taking effect on Aug. 25, 2022, §170A.002(b) includes the following exceptions to the prohibition of abortion if:

(1)  the person performing, inducing, or attempting the abortion is a licensed physician;

(2)  in the exercise of reasonable medical judgment, the pregnant female on whom the abortion is performed, induced, or attempted has a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy that places the female at risk of death or poses a serious risk of substantial impairment of a major bodily function [2] unless the abortion is performed or induced; and

(3)  the person performs, induces, or attempts the abortion in a manner that, in the exercise of reasonable medical judgment, provides the best opportunity for the unborn child to survive unless, in the reasonable medical judgment, that manner would create:

(A)  a greater risk of the pregnant female's death; or

(B)  a serious risk of substantial impairment of a major bodily function of the pregnant female.

Additionally, §170A.002(d) states that medical treatment provided to the pregnant female by a licensed physician that results in the accidental or unintentional injury or death of the unborn child does not constitute a violation of the law.

To further allay the fears of healthcare providers in this new legal landscape, in the August 2022 issue of Ethics and Medics, the NCBC offers some clinical examples that demonstrate appropriate care for pregnant women experiencing complications during pregnancy.

Treatment of these conditions to preserve the health of the pregnant woman that are consistent with the standard of care should be provided.  The NCBC list is by no means exhaustive but addresses some of the more common diagnoses that may lead to questions regarding the legally permitted course of treatment.

Finally, healthcare providers must perform their due diligence regarding documentation by providing the rationale behind the necessity of a treatment and demonstrate that the death of the fetus is not the intention of the treatment. If an intervention, such as preterm induction of labor, is performed on a pregnant woman because of a medical emergency, documentation should at a minimum include:

1. the specific medical condition the intervention is intended to address;
2. the medical rationale for the physician's conclusion that the intervention is necessary to address the medical condition; and
3. evidence that the condition places the woman at risk of death or poses a serious risk of substantial impairment of a major bodily function.

Perinatal Palliative Care and Hospice Services

Perinatal palliative care programs are typically associated with specialized children’s hospitals and staffed with professionals trained to support the family of an unborn child with a serious illness.  Services vary by program, but typically they include advance care planning, sibling support, care coordination, and anticipatory grief work.  The perinatal palliative care team remains involved with a family from time of referral, through pregnancy, and into the delivery and postpartum period.  In the case of a perinatal death, bereavement support is also provided for a minimum of one year.

Hospice is a community-based program provided as an insurance benefit by most healthcare plans when an individual has a medical condition that will likely result in death within six months.  For pediatric patients, payers such as Medicaid, Tricare, and most private plans will provide hospice services concurrently with curative treatments, allowing children to receive the support of a hospice program while still pursuing hope of a cure.  Hospice programs provide palliative care services integrated with home care, and while there are over nine-hundred hospice providers in Texas, few are staffed with individuals that have pediatric training and experience, limiting the availability of these compassionate services for perinatal and pediatric patients.

Proactive work that furthers the development and availability of palliative care services and hospice programs for perinatal and pediatric patients will be a critical and compassionate task in the Post-Roe era. Families facing these diagnoses could be referred to Be Not Afraid, an organization which accompanies and advocates for parents whose prenatal children are diagnosed with a severe, life-limiting medical condition or disability. Their website is www.benotafraid.net.

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[1] “Abortion (that is, the directly intended termination of pregnancy before viability or the directly intended destruction of a viable fetus) is never permitted. Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion.” Dir. 45, Ethical and Religious Directives for Catholic Health Care Services, 18 (6th ed. 2018)

[2] Terminating a pregnancy before viability for a condition that does not pose a threat to the woman’s life before she reaches viability is not consistent with the Ethical and Religious Directives for Catholic Healthcare.