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/

Get more information, details and resources on Know Your Regulator - https://www.belolaw.com/know-your-regulator

Episode Transcript

Speaker 1 (00:01):
This podcast is for educational purposes only, does
not constitute legal advice anddoes not create an
attorney-client relationship.
If you need legal assistanceabout a legal problem, contact
an attorney.
Howdy and welcome to Know yourRegulator.
The podcast that inspires youto engage.
I am your host, simone Murphree, and co-hosting with me today

(00:22):
is Melissa Hooper.
Hi everyone, we have a veryimportant discussion today on
some recent clarifications inTexas's abortion law and how
they impact medicalprofessionals.
This is really critical tounderstand and be aware of as a
physician in Texas right now.

Speaker 2 (00:40):
And to help us navigate this topic, we are
joined by Mr Tony Bertolino, whois the managing partner here at
Bertolino LLP, and hespecializes in professional
licensed defense.
Welcome.

Speaker 3 (00:53):
Tony Well, thank you.
Thank you very much for havingme and I'm excited to discuss
this very important issue thatdirectly impacts physicians and
medical professionals throughoutTexas.
I do want to add, before we getdeeper into this podcast, is
I'm well aware that this is avery delicate and sensitive

(01:15):
topic.
So you know this podcast, likeall our podcasts, we're really
presenting information to thepublic and letting them know and
informing them about the laws,the regulations and the legal
interpretations that affecttheir careers and businesses.
So we won't go into thepolitics behind it or the

(01:36):
sensitivity of the topics.
This firm, or anybody here,doesn't take a position one way
or the other, so I do want tothrow that out as a sort of a
caveat to the, to those viewersthat are out there.

Speaker 1 (01:49):
Yeah, absolutely, tony.
This is just for educationalpurposes, just for informational
purposes.
We're just going to give youthe facts.
So, tony, let's start with anoverview.
Can you walk us through theserecent legislative changes and
what may have prompted them?

Speaker 3 (02:06):
Absolutely Well, the current law that we have in
Texas, which actually went intoeffect on September 1st of 2021,
it's called the Texas HeartbeatAct, and what this law did, or
what this law does, is that itbans abortions if there is a

(02:26):
what's considered or called afetal cardiac activity, which is
a heartbeat in the fetus andthat normally occurs
approximately six weeks afterpregnancy.
You know, hence the name theheartbeat or the Texas Heartbeat
Act.
However, what happened withthat law is that it used a lot
of very vague and ambiguouslanguage, which left physicians

(02:48):
really uncertain about when theycould legally intervene and
perform abortions or not, andyou know they really had.
There's a lot of vague languageand doctors were very confused
as to what constitutes a medicalemergency, which, of course,
has led to delays in carebecause of these legal

(03:13):
consequences.
And the new bill what it doesis it aims to clarify that when
medical professionals can act incases of when there's a medical
necessity, to avoid any kind ofcriminal or civil penalties uh,
to avoid, you know, any kind ofcriminal or civil penalties.

(03:35):
Um, you know, from the criminalside, you know doctors are, are
very concerned because you knowthey're, if they, if they don't
do what they're supposed to dounder the law and it's not clear
to them, and they performabortions anyway.
They could face, uh you know,criminal penalties such as life
imprisonment, let alone civilpenalties, which include up to a
$10,000 fine for every abortion, as well as recovery of

(03:59):
attorney's fees and court costs.
And what's also interestingabout this particular law is
that it allows anybody in thepublic to file a lawsuit against
physicians who violate thisabortion ban.
So there's, you know, thesedoctors are very concerned, and
rightfully so, as to you knowwhat they can and cannot do

(04:23):
under the law.

Speaker 2 (04:24):
Thank you for that, and that definitely makes sense.
So what specific changes arebeing made to clarify this law?

Speaker 3 (04:32):
Well, it's really it has a lot to do with the
language, the clarification ofcertain language and definitions
in the current law.
One key update is removing theterm of quote-unquote
life-threatening as a thresholdfor medical intervention.
Instead, now what the lawstates or what the proposed law

(04:52):
states is that the physicianscan use their medical judgment
to determine when an abortion isnecessary to protect a
patient's health and of courselegislators when they created
this law.
I'm not certain whether or notthere were physicians and there
probably were who were you knowwho drafted some of this

(05:14):
proposed legislation, but manyof them aren't.
Many of them are lawyers andthey're not doctors.
They're not, you know, inpositions of you know, at the
time of making those sort ofjudgment calls, those medicinal
judgment calls that only doctorscan 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 thelaw is and how it's applied, and

(05:40):
it also protects doctors fromliability if they are acting in
good faith and they're notintentional in their acts.
They're not intentional intheir acts.

Speaker 1 (05:48):
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 (06:01):
How does this affect them in real world practice?
Well, as I mentioned before,you know there are consequences,
severe consequences, if the lawis violated.
And what these new changeswould ultimately do, in clearing
up the language, it'll providesome assurances or reassurances
for the physician.
So they can, you know, they canprioritize the patient care

(06:22):
without you know, withoutfearing any type of civil or
criminal prosecution.
You know, these doctors havebeen 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

(06:42):
they're supposed to do andfollow the hypocritical oath and
to do no harm and protect thepatient's care.

Speaker 2 (06:51):
That's a crucial point.
Have there been cases wherehesitation has led to poor
patient outcomes there?

Speaker 3 (06:58):
has actually there have been reports of, you know,
delayed care because thesehospitals, you know they were
hesitant to allow the, you knowthe care to move forward and
they required, you know, theirlegal departments to review
before approving these emergencymedical procedures.
So you know, really, you thinkabout, you know how does that

(07:20):
really provide good patient careif you have to go through these
different levels of scrutinyand questions by a legal
department and of course, thishas put both the patients and
the doctors in possiblesituations which you know would
have an impact on the patientcare?
With this clarity in thelanguage, in the laws, the

(07:43):
physicians will be in a betterposition to make medical
decisions without, you know,these legal uncertainties.

Speaker 1 (07:49):
Yeah, and, like we've been saying, this is a big
change.
So let's kind of look at wherethis bill stands right now.
What is the current status ofthis legislation?

Speaker 3 (08:03):
Well, currently the bill, you know, certainly has
bipartisan support in Texas, butit still needs to go through
the committee hearings.
And of course these committeehearings are composed of
lawmakers, experts and thepublic and they're permitted,
during these hearings, to speakvery openly and even debate

(08:25):
about language in thelegislation or whether or not
the legislation should pass.
And of course it's got to gothrough these committee hearings
before reaching a vote in theSenate and in the House.

Speaker 2 (08:39):
If the bill is to pass both Senate and in the
House, what would the next stepsbe?

Speaker 3 (08:45):
Well, afterwards, if it's passed, it would then go to
Governor Greg Abbott for hissignature and, of course, if
Governor Abbott signs that lawor that proposed legislation,
then it becomes law.
However, if it doesn't get pastthe committee and doesn't get
enough votes, you know it coulddie even before reaching

(09:10):
Governor Abbott's desk.

Speaker 1 (09:12):
And if it doesn't pass, then what would happen?

Speaker 3 (09:18):
desk.
And if it doesn't pass, thenwhat would happen?
Well, the lawmakers will haveto go back to the drawing board,
really, and look for ways tointroduce language in the
legislation that would trulyresult in bipartisan support.
They'd be able to reintroducethat proposed legislation in
future legislative sessions.
Of course, what they're goingto need to do as well if it
doesn't pass, and to make surethat there is good bipartisan

(09:43):
support is they may have to makesome adjustments or changes in
the proposed legislation to gainbroader support.

Speaker 2 (09:52):
Gotcha.
Well, I feel this has been veryinsightful discussion and a hot
topic in today's picture.
So before we close for the day,Tony, what final advice would
you provide for medicalprofessionals trying to stay
compliant?

Speaker 3 (10:07):
You know, I think it's very important that you
know medical professionals, youknow licensed physicians, you
know they stay informed aboutthese legislative changes.
Make sure they're mindful ofthese changes.
Make sure they're mindful ofnew laws and changes to the
current law, because, at the endof the day, they're going to be

(10:30):
responsible for understandingand knowing the law, no matter
what I mean.
You know there are.
You know ignorance of the lawis.
There's no excuse for that isan old adage used, and that
applies here as well.
Another thing that I recommendis, if necessary, work with a
legal counsel, work with anattorney when you have doubts as

(10:51):
to your understanding of notjust the current law that's in
place now, but any changes inthe near future, and you know
and do what you can to reallyadvocate for you know, for a
good understanding of what thesechanges are, are in the law.
At the end of the day, you've,you know you're responsible for,

(11:14):
you know not just your licenseto practice medicine and
protecting the patients, butyou're also, you know,
responsible for making sure thatyou 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 thisbill, you can visit
TexasLegislatureOnlinecom.
There you can track this bill'sprogress, see its history and
more, and be sure to like,subscribe and follow.
Know your Regulator for morecontinued updates on the changes
in your professional landscape.

(11:55):
Regulator for more continuedupdates on the changes in your
professional landscape.
Until next time, stay inspiredand continue engaging with your
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