Austin, TX, USA - Oct. 2, 2021: Participants at the Women's March rally at the Capitol protest SB 8, Texas' abortion law that effectively bans abortions after six weeks of pregnancy.

Why Must Abortion Providers Needlessly Travel to Texas?

By Carmel Shachar

This year, the American Board of Obstetrics and Gynecology (ABOG) — the organization that runs the exam doctors must take to become certified in obstetrics and gynecology (OB-GYN) — is requiring all candidates to attend in-person examinations in Dallas, Texas. By doing so, ABOG is failing its duties to its membership by asking the practitioners who are most likely to provide abortion services to travel to a state with a legal regimen that is particularly hostile to them.

Texas’ SB 8 outlaws abortion around six weeks of gestation, and is perhaps the most restrictive abortion ban in the country. It also includes an “aiding and abetting” provision, allowing private individuals to bring suit against anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion,” or even “intends to engage in the conduct” of an abortion.

ABOG takes the position that SB 8 does not apply to abortions performed outside of Texas. It further states that candidates traveling to Texas for their certifying exams “do not need to obtain legal advice prior to traveling.”

The most reasonable legal interpretation of SB 8 is that it does not apply to abortions performed outside of Texas, because states only have the power to regulate within their jurisdiction. But reasonable is not a word commonly applied to the policy fights over abortion these days. As the ACLU of Texas notes, while Texas abortion laws only apply to care received in-state, “it is not possible to guarantee that people attempting to enforce these criminal laws or SB 8 will not bring a lawsuit against Texans who refer or provide assistance to patients seeking abortion care out of state.”

In fact, the Texas Attorney General’s actions suggest an interest in obtaining the medical records of Texans who travel to obtain abortions, and pursuing legal action to stop these out of state abortions. The AG joined a letter from 19 state Attorneys General to the Biden Administration arguing against a proposed rule to protect the privacy of reproductive care medical records because it “would interfere with the States’ ability to obtain evidence that could reveal violations of their laws.”

In the current inflamed atmosphere, it seems naïve at best and perhaps even disingenuous of ABOG to assure its physicians that travel to Texas will not embroil them in a legal fight with advocates looking to curtail Texans’ ability to travel to other states to receive abortion care.

There is a clear solution — allow physicians who worry about the risks of traveling to Texas to take their certifying exams virtually. There is precedent for such an offering. The last time that ABOG tried to mandate in-person travel to Texas for the certifying exams, pressure from OB-GYNs succeeded in convincing the Board to allow a virtual option.

But ABOG has a strong interest in ensuring that OB-GYNs continue to travel to Texas for their exams: the organization is based there, and is completing construction on a new headquarters in Dallas that will serve as a testing site. The financial interests ABOG has in maintaining the status quo — that it remains where it has invested money into a new building and requires physicians to travel to that building — suggest a conflict of interest in navigating the risky legal landscape for the members of its specialty.

Previously, ABOG provided justification for why it remains in a state that is hostile to the provision of reproductive care, arguing that it is not a political organization, that other states may pass similar legislation, and that it should not abandon states with restrictions.

ABOG, in that same statement, also promised that it would “continue to support all board-certified OB GYNs across the country in all manner possible within our role as a certifying organization.” It is failing to do so by requiring physicians who perform abortions to travel to Texas and assuring them that they do not need to pursue legal advice before doing so.

Because of the gatekeeping role that ABOG holds, it seems that it should have something akin to a fiduciary duty when it comes to the members of its specialty. By providing cursory legal advice that supports its financial position but does not necessarily reflect the risks posed to its physicians, and by failing to accommodate very reasonable concerns through a virtual option, ABOG is not meeting its responsibilities.

Carmel Shachar

Carmel Shachar, JD, MPH, is Assistant Clinical Professor of Law and Faculty Director of the Health Law and Policy Clinic at the Center for Health Law and Policy Innovation of Harvard Law School (CHLPI). Previously, Shachar was the Executive Director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

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