Texas lawmakers advanced a bill Wednesday to clarify medical exceptions under one of the most restrictive abortion bans in the U.S., putting the GOP-backed proposal on the brink of reaching Republican Gov. Greg Abbott’s desk.

The changes would not expand abortion access in Texas or list specific medical exceptions under the state’s near-total ban, which took effect in 2022 and only allows for an abortion to save the life of the mother. It also would not include exceptions for cases of rape or incest.

But the proposal is still a pivot for Texas Republicans, who for years have defended the law as written in the face of legal challenges and pleas for clarity from medical providers. Democrats, meanwhile, have called the bill a positive step but also faced criticism from some abortion-rights allies who raised doubts about what, if any, impact it will have.

The bill would specify that doctors cannot face criminal charges for performing an abortion in a medical emergency that causes major bodily impairment. It also defines a “life-threatening” condition as one capable of causing death.  

Senate Bill 31 passed 129-6 and needs only a final procedural vote before reaching Abbott, who has signaled support for the measure.

North Texas doctor has mixed feelings toward the bill

Three years ago, Dr. Austin Dennard traveled outside Texas for an abortion after her fetus was diagnosed with a fatal condition. She later testified in a lawsuit about how the state’s near-total ban on abortion put her health at risk.

Dennard’s feelings are mixed about the bill, which does not list specific medical conditions or include fatal fetal anomalies as exceptions.

“What is broadly now known among practicing physicians in Texas is that abortions are illegal,” said Dennard, an OB-GYN in Dallas. “Undoing that broad understanding is going to be difficult.”

Moves to clarify medical exemptions

Lawmakers in at least nine states with abortion bans have sought to change or clarify medical exceptions that allow doctors to perform an abortion if the mother’s life is at risk since Roe v. Wade was overturned nearly three years ago, according to the Guttmacher Institute, a research organization that supports abortion rights.

Supporters of these bills have said they have the potential to save lives. Critics, including some abortion rights groups, have questioned whether they make state abortion laws easier to understand.

In Kentucky, Democratic Gov. Andy Beshear earlier this year vetoed a bill that GOP lawmakers touted as bringing clarity to that state’s near-total abortion ban, saying it would not protect pregnant women. Republican lawmakers later overrode his veto.

Last year, South Dakota released a video for physicians that outlined examples of acceptable medical emergencies, which received criticism from abortion rights supporters for not being specific enough.

“I think these bills are trying to get at the reality that exceptions are really hard to comply with,” said Kimya Forouzan, principal state policy adviser at the Guttmacher Institute.

Still, Texas Republican Sen. Bryan Hughes, an architect of the state’s abortion ban, said the new bill’s goal is to avoid confusion among doctors.

“One of the most important things we want to do is to make sure that doctors and hospitals and the hospital lawyers are trained on what the law is,” Hughes said.

Navigating exceptions under abortion bans

In 2024, the Texas Supreme Court ruled against Dennard and a group of women who said they were denied abortions after experiencing serious pregnancy complications that threatened their lives and fertility. The court ruled that the state’s laws were clear in allowing doctors to perform an abortion to save the life of the mother.

Texas’ efforts underscore the challenges abortion opponents have had to navigate regarding medical exceptions, said Mary Ziegler, a professor at the University of California, Davis School of Law and a historian of abortion politics in the U.S.

Judges have put enforcement of Utah’s abortion ban on hold in a case over exceptions, for example, and they struck down two Oklahoma bans over medical exceptions – though most abortions in that state remain illegal.

For abortion opponents, Ziegler said, it’s tricky to craft legislation that does two different things.

“Can you provide clear guidance as to when medical intervention is justified without providing physicians discretion to provide abortions they don’t think are emergencies?” Ziegler said.

Texas may advance other anti-abortion laws 

Texas’ ban prohibits nearly all abortions, except to save the life of the mother, and doctors can be fined up to $100,000 and face up to 99 years in prison if convicted of performing an abortion illegally.

Attorney General Ken Paxton’s office has filed criminal charges against a midwife for allegedly providing illegal abortions and is also suing a New York doctor for prescribing abortion pills to a Texas woman.

Texas Republicans are also advancing efforts to make it a civil offense to mail, deliver or manufacture abortion pills, expanding on a 2021 law that allows private individuals to sue others whom they suspect are helping a woman obtain an abortion.

In a joint effort, Republican lawmakers led by House Financial Services Committee Chair Patrick McHenry and House Agriculture Committee Chair Glenn Thompson have called upon Securities and Exchange Commission (SEC) Chair Gary Gensler to provide further clarification on the agency’s stance regarding the custody of Ethereum (ETH) by Prometheum. 

The lawmakers, including Representatives French Hill, Dusty Johnson, Tom Emmer, and Warren Davidson, expressed concerns over the lack of transparency in the SEC’s Special Purpose Broker-Dealer (SPBD) regime and the potential ramifications of allowing Prometheum to proceed with its custody services for ETH.

Recognition Of Ethereum As Non-Security

In their letter sent on Tuesday, the lawmakers emphasized the SEC and Commodity Futures Trading Commission’s (CFTC) previous recognition of Ethereum as a non-security digital asset. 

Based on this precedent, they pointed out that the SEC’s current regulatory framework does not permit SPBD custody of non-security digital assets. The lawmakers also warned that allowing Prometheum to proceed under these circumstances could have “irreparable consequences” for the digital asset markets.

The Republican lawmakers urged Chair Gensler to clarify the SEC’s position on several key aspects, including the ability of SPBDs to custody non-securities, the SEC’s approach to addressing SPBD non-compliance, Ethereum’s regulatory classification, and the SEC’s specific stance regarding Prometheum’s recent announcement.

The letter further raised concerns about the lack of a clear definition for “digital asset securities” and the SEC’s failure to provide comprehensive guidance or propose rules for asset classification within the digital asset marketplace. 

The lawmakers also expressed their disappointment with Chair Gensler’s refusal to acknowledge Ethereum as a non-security digital asset, stating that his “unwillingness” to clarify the treatment of ETH has contributed to the confusion and uncertainty surrounding its classification.

Lawmakers Urge Resolution

The lawmakers criticized the SEC for creating “uncertainty” among regulated entities by failing to identify which digital assets should be considered “digital asset securities.” 

They referenced temporary frameworks established to facilitate trading and custodial services for digital asset securities. The SEC’s Division of Trading and Markets issued a no-action letter to FINRA in September 2020 outlining conditions for registered broker-dealers to operate an Alternative Trading System (ATS) trading digital asset securities. The letter further reads:

Despite this history of recognizing Ethereum as a non-security digital asset, you have consistently refused to acknowledge that ETH is not a security. In your March 2023 testimony before the House Committee on Financial Services you declined to answer multiple questions about whether ETH should be considered a commodity. Your unwillingness to clarify the treatment of ETH only exacerbates the confusion and uncertainty regarding ETH’s classification as demonstrated by the Prometheum announcement.

Ultimately, the letter stressed the need for regulatory clarity and a comprehensive approach to digital asset classification to minimize uncertainty and foster growth within the digital asset ecosystem. 

They called on Chair Gensler to address their concerns promptly, considering the potential implications for market participants and the broader digital asset markets. 

Chair Gensler and the SEC have yet to respond to the letter formally, but the industry awaits further developments as the regulatory landscape for digital assets continues to evolve.

Featured image from Shutterstock, chart from TradingView.com