Taking the oral examination is the final step in becoming a board-certified obstetrician and gynecologist (OB-GYN). It is a challenge in the best of circumstances.
But instead of worrying about how to respond to questions about the management of uterine cancers or peripartum hemorrhage, test candidates are worried about the legal risks of taking this exam, which must be done in Dallas, home of the American Board of Obstetrics and Gynecology (ABOG). Texas is the state that proudly passed Senate Bill 8, a strict anti-abortion law that demonstrates increasingly hostile laws against medical providers in that state.
With one change — returning to virtual testing — the board could quell the worries of about 15,000 board-certification hopefuls.
Passing one’s boards demonstrates that a physician has the knowledge and skillset to provide care in a specific specialty. It is separate from licensure, which individual states require and manage. ABOG is the governing body that certifies physicians in obstetrics and gynecology. Although the exam is described as voluntary, almost all hospitals require board certification for their physicians to be hired as employees. This exam is the only way for OB-GYNs to achieve board certification.
But the only way to take it is to travel to ABOG’s testing facility in Dallas sometime between mid-October and mid-November.
During the Covid-19 pandemic, ABOG transitioned to a virtual format to protect the health of examinees. As recently as July 2022, it used a virtual format to protect candidates from ongoing Covid-19 infection, as well as “concerns regarding the U.S. Supreme Court opinion on Dobbs v. Jackson Women’s Health Organization.” When ABOG reviewed the process of remote certifying examinations, the results were positive, with unchanged pass rates, similar rates of candidate anxiety, mitigation of environmental biases, and security hazards through the use of standardized testing centers. The organization’s findings were published in November 2022 in one of the specialty’s premiere journals, the American Journal of Obstetrics and Gynecology.
But with the 2023 testing cycle, ABOG returned to requiring in-person exams for all candidates.
This is a problem for several reasons. Texas has multiple laws restricting access to abortion. Recent legal action targets anyone who is even suspected of assisting with abortions, let alone performing them.
As part of the full scope of obstetric and gynecologic care, OB-GYN trainees are required to have experience with abortion and management of early pregnancy. Many OB-GYNs outside of Texas have cared for patients seeking abortion care outside of their home states, and these procedures must be included on their certifying exam case lists. Due to the “aid and abet” provision included in Senate Bill 8, these providers could be targeted for legal or political retribution.
Although there are now states in the U.S. with shield laws, these have not yet been tested in the courts, so doctors do not know if they provide sufficient protection while traveling in Texas.
We would be remiss if we did not acknowledge the recent U.S. Court of Appeals for the Fifth Circuit ruling that emergency room physicians do not have to perform emergency abortions on pregnant people presenting at emergency departments even when abortion would be the standard of care. Doctors practicing in Texas are now faced with potential violations of the Emergency Medical Treatment and Labor Act if they do not provide necessary, emergent abortion care, or violations of Texas state law, which makes abortion a felony and imposes fines and potential loss of licensure, if they do.
We want to acknowledge that we are neither Texan patients nor Texan providers, all of whom face the full devastating impacts of these laws beyond anyone outside of the state. The concerns we raise reflect some of the many challenges that patients and providers across our entire country face as we survive in a post-Roe era.
To reassure exam takers, the American Board of Obstetrics and Gynecology published frequently asked questions on its website. They include:
Are candidates who reside in Texas or those living outside the state who perform abortion care at risk if they take the Certifying Exam, especially if they travel to Texas to sit for the exam?
Any candidate taking a Certifying Exam, whether it be virtual or physically in Texas, should not be at legal risk.
Do candidates for certification need to obtain legal guidance from a lawyer prior to traveling to Texas?
While each candidate is free to do so, it is ABOG’s opinion that candidates do not need to obtain legal advice prior to traveling to Texas to sit for the oral Certifying Exam.
We find these FAQs to be thin. They likely won’t reassure OB-GYNs seeking board certification. We offer our own FAQs for those preparing to travel to Dallas and take their exams in the coming season.
Is there any chance I am at legal risk?
If a physician is not providing care in Texas, then no violation of Texas law occurs, unless the physician provided a telemedicine consultation, which would require medical licensure in Texas and could violate the law requiring physicians to consult in person to prescribe mifepristone. (This law contradicts FDA standards for prescribing mifepristone/misoprostol, but several states have such contradictory laws.) The legal risk is low, but there is no guarantee that prosecutors would choose to leave test takers alone, because some want prosecutors across Texas to enforce state laws aggressively.
What if I took care of a Texas resident who traveled out of state during their pregnancy and, due to life-threatening complications, ended their pregnancy and I was part of that care?
If the care occurred outside of Texas, then Texas prosecutors do not have jurisdiction. If there had been an element of providing care in Texas, this situation would hopefully fall within the very narrow exceptions that Texas law has for necessary abortions after six weeks of gestation. However, exceptions that allow for medical treatment, including abortion when needed for the preservation of life of the pregnant person, are so hard for doctors to understand that patients are suing Texas over these laws. And, as noted earlier, “aiding and abetting” abortion is also a crime in Texas. This is in addition to criminalizing abortion itself and allowing private parties to enforce abortion prohibitions under Senate Bill 8. These laws are largely untested, so enforcement remains an open question.
Requiring physicians from across the nation to travel to a state committed to hostility against pregnant people, with uncertain legal consequences for test takers, is unacceptable.
ABOG has demonstrated that virtual testing is not only feasible but successful in credentialing the next generation of doctors. Pearson testing centers exist in all 50 states and are recognized testing centers used for required tests earlier in training. In a recent phone call between one of us (Dr. O’Connor) and a Pearson employee, a Pearson representative confirmed that they would be able to provide all necessary components for remote testing. This company is just one example of options that could be explored if ABOG were committed to applicant safety.
Until then, the board’s decisions are inimical to the set of young physicians they presumably serve.
Madeline Cohen, M.D., is a third-year OB-GYN resident physician at Boston Medical Center. Sarah O’Connor, M.D., is a second-year complex family planning fellow physician at Boston Medical Center. Nicole Huberfeld, J.D., is the Edward R. Utley Professor of Health Law at Boston University School of Law and School of Public Health.