How new regulations impact abortion and birth control access in Texas

ByMaría Méndez, The Texas Tribune

Wednesday, October 11, 2023

HOUSTON, Texas -- More than a year after the U.S. Supreme Court's overturning of Roe v. Wade, Texas continues to be the largest state in the nation to ban nearly all abortions. But some questions and changes to abortion and birth control access have arisen since then.

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Following many reports of patients facing denials or delays for medical emergencies in which an abortion is needed, state lawmakers have affirmed protections for medical professionals who exercise "reasonable judgment" to treat ectopic pregnancies and when a patient's water breaks too early for the fetus to survive outside of the womb.

Meanwhile, a federal court ruling has limited birth control access for minors at federally funded Title X clinics, which now require parental consent for a minor to be prescribed birth control.

Here's where reproductive health care currently stands in Texas. This story may be updated if there is relevant news and changes.

What does abortion access look like in Texas?

It is still illegal to perform an abortion in Texas, including by dispensing or mailing the abortion-inducing medications mifepristone and misoprostol, in most circumstances. Texas' laws have narrow exceptions only to save the life or prevent "substantial impairment of major bodily function" of a pregnant patient.

State laws do not criminalize the person who has an abortion. Some Texans have found ways to get abortions by traveling to other states or Mexico, or self-managing abortions at home by getting medications through international nonprofits, such as Aid Access, or online stores.

What counts as a medical emergency in Texas?

State law says treatments for miscarriages, known as "spontaneous abortions" in medicine, and ectopic pregnancies, in which a fertilized egg grows outside of the uterus and becomes unviable, do not count as illegal abortions. However, there were several reports of medical providers delaying medical care for these conditions due to confusion or the threat of jail time and six-figure fines for medical professionals.

In response, state lawmakers passed a law that now gives a legal defense to health care providers who exercise "reasonable judgment in providing medical treatment" for an "ectopic pregnancy at any location" or a "previable premature rupture of membranes," which is when a pregnant patient's amniotic fluid breaks before a fetus is determined to be able to survive outside of the uterus.

Viability - or when a fetus can survive outside of the uterus - depends on each pregnancy and various factors, according to the American College of Obstetricians and Gynecologists. The group recommends that patients who experience a premature water break be counseled about the risks of continuing or terminating the pregnancy. This should also include information about the realistic potential outcomes for the fetus. Risks associated with a premature rupture of membranes include infection, placental abruption, and umbilical cord accidents.

State law also says the Texas Medical Board cannot take disciplinary action against a physician for providing such treatment, and that pharmacies and pharmacists who provide medication ordered by a physician in these circumstances also have a defense.

Texas abortion laws, however, don't make an exception for lethal fetal abnormalities, forcing some pregnant patients to carry pregnancies to term even if they are not expected to have viable outcomes.

What court cases could affect abortion access?

Medical emergencies: A group of Texas women who said they were denied medically necessary abortions sued the state of Texas, seeking to block the law from applying to medically necessary abortions and clarify when a medical emergency justifies an abortion. Some of the women described the medical care delays in a July hearing. A state judge sided with the women, but the Attorney General appealed the ruling to the Texas Supreme Court, essentially putting the ruling on hold.
Abortion medication: A federal judge in Amarillo revoked the Food and Drug Administration's approval of mifepristone - an abortion-inducing medication - after a lawsuit by a group of anti-abortion doctors. But the U.S. Supreme Court has allowed the drug to remain on the market until the case is resolved. Mifepristone, used along with misoprostol, is the most common way Americans terminate their pregnancies. Numerous studies have shown mifepristone to be safe and effective, and it's recommended by the American College of Obstetricians and Gynecologists and the World Health Organization. It was approved by the FDA in 2000.
Abortion funds: Abortion funds in Texas - nonprofit groups that help people pay for abortions and out-of-state travel - have resumed their efforts after a federal judge indicated that they likely cannot be criminally charged for helping people travel out of state to terminate their pregnancies.
Aiding in abortions: A man in Galveston is suing his ex-wife's friends for helping her obtain abortion-inducing medication. The women have countersued, arguing he knew his ex-wife had the pills and did nothing to stop her. Both cases are still pending.
A federal judge in Texas struck down Biden administration guidance requiring hospitals to provide medically necessary abortions under the Emergency Medical Treatment and Active Labor Act, after a lawsuit filed by Attorney General Ken Paxton. Paxton also sued over guidance to pharmacies that reminded them of their obligation to fill prescriptions for abortion-inducing drugs. The case is before an appeals court.

What does contraception access look like in Texas?

Adults in Texas still have access to a range of birth control and reproductive health care services through most health insurance plans and government-funded programs. Most health insurance plans must provide contraception options and family planning counseling at no out-of-pocket cost. State programs and federally-funded Title X clinics also provide contraception for those who are uninsured or undocumented.

However, most minors need parental permission to be prescribed birth control in Texas. Federal Title X clinics used to provide confidential contraception to minors, but after a recent court ruling in an ongoing lawsuit, those clinics now require parental consent as well. Minors can still access testing and treatment for sexually transmitted infections, pregnancy tests, condoms and counseling without parental consent at these clinics. Minors on Medicaid, or who are emancipated, can consent for themselves to get prescribed birth control.

The emergency contraception known as Plan B is still available over-the-counter in stores and, in some cases, through federally-funded clinics and public health departments. Ella, another emergency contraception pill that works up to five days after sex, requires a prescription, but it can also be prescribed and ordered online through an online pharmacy.

The Food and Drug Administration also recently approved the daily contraceptive pill Opill for sale without a prescription. It is expected to become available in stores and online in early 2024, according to its manufacturers.

You can read more about birth control access in Texas in Texas Tribune's guide.

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