Texas Republicans have proposed changes to the state’s strict abortion ban they say would make clear that doctors can terminate pregnancies for serious medical risks without having to wait until a patient’s condition becomes life-threatening.

The legislation comes in response to a ProPublica investigation last fall that revealed how three Texas women died after they did not receive critical procedures during miscarriages. The reporting added to the testimonies and reports of dozens of women denied care during pregnancy complications and led to a statewide reckoning on the dire effects of the law.

The bill, which will have its first committee hearing in the state Senate today, represents a remarkable reversal for Republican leaders who had for years insisted no changes were needed. It was written by state Sen. Bryan Hughes, the author of the original ban who said just four months ago that exceptions for medical emergencies were “plenty clear.” Texas’ governor and lieutenant governor have signaled support for the bill.

It is part of a wave of legislation responding to public pressure after ProPublica’s reporting revealed preventable maternal deaths in states with abortion bans. Bills that have the most traction have been filed and championed by the same Republicans who passed the bans and they have earned a mixed reception.

A bill in Kentucky, for instance, has drawn alarms from critics who cast it as a Trojan horse. It creates modest exceptions to the state’s near-total ban while redefining abortion in a way that advocates fear could greatly restrict patients’ access to critical procedures even in emergencies. Democratic Gov. Andy Beshear vetoed the bill Tuesday, saying it failed to protect women or even clarify the state’s law, an action Republicans could vote to override this week.

The Texas bill however, has broader support and was written in consultation with Democrats, major anti-abortion groups, the Texas Hospital Association and the Texas Medical Association.

Some legal experts and reproductive health care advocates are calling it a significant step forward in a Republican-led state that has shown every sign of clamping down in support of its strict laws, even in the face of public outcry.

“We wish there was a lot more in the bill, but nothing that’s in the bill is bad,” said Bee Moorhead, executive director with Texas Impact, an interfaith-based coalition that sent 6,000 postcards to lawmakers, demanding change after ProPublica’s reporting.

“The basic point is that there are people who would die if this bill doesn’t pass, who would not die if it does pass,” she said.

The bill is intended to make it harder for prosecutors to win a case against a doctor who provided an abortion to a patient experiencing pregnancy complications. It no longer requires a patient’s condition to be “life-threatening.” Doctors can act if their “reasonable medical judgment” assesses a “serious risk to a major bodily function.” It also specifies that doctors do not need to wait until an emergency is “imminent” to terminate pregnancies.

“It goes a long way towards fixing the most serious problems with the Texas abortion law,” said Seth Chandler, a law professor at the University of Houston Law Center.

Others are skeptical that the changes would go far enough to reassure risk-averse hospitals and doctors. While the bill attempts to mitigate the criminal risk for providers handling pregnancy complications, it leaves intact the most powerful deterrent: steep penalties of up to $100,000 in fines, 99 years in prison and loss of medical license for those who violate the law.

It also leaves open the question of what constitutes a “serious risk.” Doctors previously told ProPublica the ban’s unclear language and stiff penalties have led to delays in care. In response to ProPublica’s reporting on preventable maternal deaths in Texas, 111 Texas OB-GYNs signed a letter blaming the deaths on the ban and urging lawmakers to “do something to make sure this never happens again.”

The Center for Reproductive Rights, which has represented 20 women suing the state after they were denied abortions and faced health risks, opposes the bill. The American College of Obstetricians and Gynecologists declined to comment on the bill. Many doctors are adopting a wait-and-see stance.

ProPublica parsed through the language and ran it by six legal experts and six doctors to assess how likely the legislation is to save lives. While some expressed tempered optimism that legislators recognizing there was a problem, most said broader changes would be needed to guarantee the protection of patients.

“Too Many Women Have Died”

Texas’ abortion laws are among the strictest in the country. While the current laws have exceptions, they are written in a way that requires a patient’s condition to be “life-threatening” before receiving an abortion.

The result: Some doctors and hospitals have held back on treatments, waiting for the fetal heartbeat to stop or for patients to wind up in undeniable distress.

ProPublica has investigated three cases in which women in Texas died after doctors delayed care during miscarriages, finding that doctors have failed to provide critical procedures or delayed them while taking extra steps to record documentation, even when there was no fetal heartbeat and a patient’s condition was urgent.

Josseli Barnica was 17 weeks pregnant when she was diagnosed with an “inevitable” miscarriage at a Houston hospital in September 2021. Though her fetus was already pressing against her cervix, doctors waited 40 hours until the fetal heartbeat stopped to inducea delivery, putting her at serious risk of deadly infection. She returned to the hospital two days later with sepsis and died.

Nevaeh Crain, 18, also died from complications of sepsis after delays in care. In 2023, she was sent home from two hospitals while she showed signs of infection and then made to wait 90 minutes for a second ultrasound to confirm fetal demise as her organs were failing.

Sepsis has become a lot more common in these kinds of cases, ProPublica found, in a first-of-its-kind statewide analysis of hospitalizations for second-trimester pregnancy loss through 2023. After Texas banned abortion, sepsis rates spiked more than 50%.

In every preventable death in a hospital that ProPublica reported on, doctors did not perform procedures that are associated with abortion but are also critical for treating miscarriages.

As Porsha Ngumezi hemorrhaged in 2022, her doctor did not provide a dilation and curettage procedure, the standard way to empty the uterus that a dozen doctors told ProPublica would be the quickest way to stop the bleeding. She died, leaving behind a husband and two sons.

Supporters of the new legislation say it aims to prevent such outcomes.

Current law specifies that the woman must be suffering a “life-threatening” physical condition in order for doctors to intervene. The amendment strikes that phrase and says doctors can perform abortions if, using their reasonable medical judgment, they believe there’s a “serious risk of substantial impairment of a major bodily function” or “risk of death.” (Like federal law, Texas law defines major bodily functions as systems including the body’s reproductive, digestive, bowel, bladder, respiratory and neurological processes.)

The bill also states it should be viewed as consistent with recent rulings from the Texas Supreme Court, which state that the risk to a woman’s life or major bodily function does not need to be “imminent” for doctors to provide abortions under the law. That’s the most important change in the new bill, according to Joanna Grossman, a law professor at Southern Methodist University. She credited ProPublica’s reporting with pushing lawmakers to act.

“I think the GOP in Texas has been shamed a little bit by those stories,” she said. “If nobody is telling the stories of people with wanted pregnancies who are dying and suffering severe harm they can pretend that isn’t happening.”

The bill says an abortion may also be performed for ectopic pregnancies and for removing “a dead unborn child” after a miscarriage. It removes the “affirmative defense” that applied to certain exceptions in the civil code. That part of the law puts the burden of proof on the doctor to show the abortion was necessary — similar to claiming self-defense in a homicide case.

It seeks to insulate medical staff from being accused of “aiding or abetting” an abortion — so nurses and other colleagues don’t need to be afraid they could be prosecuted for participating in an abortion or discussing it.

Another part of the proposal says that the physician should try to preserve the fetus’ life but does not need to “alter or withhold” medical treatment if that delay poses a greater threat to the woman’s life or a major bodily function.

That is meant to show doctors that they can provide abortions for cases with known risks such as pre-viable premature rupture of membranes, or PPROM, when a patient’s water breaks before viability, even if the patient is still stable, said Amy and Steve Bresnen, two lobbyists involved in negotiating the bill for Texas Campaign for Mothers. The nonprofit, which has powerful Republicans on its advisory board, is focused on reproductive health.

Other changes specify that it’s not a violation of the law if a doctor provides a treatment to a pregnant patient and the fetus dies accidentally in the process. The Bresnens say these changes are intended to reassure physicians they shouldn’t delay treatments for other conditions, like cancer, out of fear they could be blamed for harming the fetus.

All of this should add up to a wide buffer for doctors in Texas to provide the same standard of care that major medical organizations recommend, the Bresnens said, because the exceptions will rely on the doctor’s “reasonable” judgment.

For prosecutors, “proving that no other reasonable physician would have done this is a high, high burden,” Steve Bresnen said.

Texas state Rep. Ann Johnson, a Democrat who signed on as a co-author of the bill, believes the amendment would give “all the tools in the medical toolbox” back to physicians.

“Do not delay, do not alter your treatment. Do not second guess it. Do exactly what you need to do to protect this woman,” Johnson said in describing the proposal.

At a press conference last week, Texas state Rep. Charlie Geren, a Republican sponsoring the legislation in the House, said the bill was the most important he has ever carried and acknowledged the toll of the abortion ban he and his colleagues passed four years ago.

“Too many women have suffered, too many women have died — if one woman has died, it’s too many and more have,” he said. “I have friends whose wives can no longer conceive because of the problems they went through with their first pregnancy and the delay that doctors faced in addressing the problem.”

“They Don’t Want to Run the Risk”

But the law hasn’t changed in the one way doctors most want it to: It can still effectively send them to prison for life if found guilty of a violation.

“The criminalization of medical decision-making makes the stakes different than it has ever been,” said Tony Ogburn, an OB-GYN practicing in Texas. He was hopeful the bill might lead to some change, but warned, “I think people are still going to be overly cautious because of the severity of the potential outcome and the criminal penalties.”

ProPublica spoke with six OB-GYNs in the state who worried the amendments may not be enough to spur hospital systems to change their policies to make abortions more accessible for patients with medical risks. Besides leaving the threat of penalties in place, they noted that the amendment doesn’t explain what constitutes a “serious risk” to a major bodily function — the circumstance that would justify an abortion.

“It doesn’t really clear things up that much,” agreed Mary Ziegler, a law professor at the University of California, Davis School of Law and leading historian of the U.S. abortion debate. ”Hospitals are not advising doctors not to intervene just because they don’t understand the law — it’s that they don’t want to run the risk.”

The bill directs the State Bar of Texas and the Texas Medical Board to create courses to educate lawyers and doctors about when they can provide abortions under the exceptions. Both declined to comment on specifics. Doctors said it will be crucial to see what guidance comes out of that effort.

In South Dakota, a similar directive resulted in the state medical board collaborating with a professional association of doctors devoted to anti-abortion causes.

In any case, the changes in Texas law would still apply only to the narrowest of cases. Many doctors noted that Republicans have so far rejected efforts to make a broader health exception in the bill or include exceptions for fetal anomalies, rape or incest. The law still explicitly says a medical emergency can’t be based on any diagnosis that patients may harm themselves — effectively a ban on mental health exceptions.

Competing bills filed by Texas Democrats that have included some of those provisions so far have not received support from Republicans. Several Democrats have also filed legislation to better examine how the state’s abortion ban is affecting the maternal health crisis following ProPublica’s reporting.

Texas state Sen. José Menéndez introduced legislation to allow the state committee investigating maternal deaths to review deaths due to abortion, or a miscarriage if an abortion procedure or medication was administered. Currently, state law prohibits the committee from studying such deaths.

Another bill seeks to compel the state committee to report its findings to the CDC’s federal program tracking causes of maternal mortality. Both bills are currently pending in committee and have not been scheduled for a hearing.

Meanwhile, Texas Republicans continue to crack down on abortion in other ways. Another Republican bill filed by Hughes this session is aimed at stopping the flow of abortion pills through the mail as well as restricting online information about the procedure. And last week, the state charged a midwife and an associate with illegally providing abortions.

“I don’t think [the amendment] solves the larger problem of who can have an abortion and when they can have an abortion, and that it’ll be done in a timely manner for all those that need it,” Ogburn said. “There’s a lot of variables, which is why it’s really hard to legislate health care, and I think those decisions could be left to patients and their doctors.”