Analysis Law and Policy

Texas State Health Services Enacts Intrusive Abortion Reporting Requirements Despite Widespread Public Opposition

Andrea Grimes

Documents released to Rewire show that the Texas Department of State Health Services ignored the input of hundreds of Texans asking it to reconsider or revise new abortion reporting requirements, and instead bent to the will of one anti-choice lawmaker and a handful of his colleagues.

Texas abortion providers are now complying with newly enacted rules that require them to gather more information about their patients, and to report to the state on any “complications” of the abortions they provide. But documents released to Rewire in January show that the Department of State Health Services ignored the input of thousands of people asking it to reconsider or revise the new rules, opting instead to privilege the ten (yes, ten) individuals who wanted the new rules—and who asked for more stringent versions of them than originally planned.

Between April and December 2012, DSHS asked for public comment on the requirements, holding public meetings and work sessions with the Health and Human Services Commission. But those meetings largely appear to have been conducted for show; despite an overwhelmingly negative response to the new rules from health care providers, private citizens and lawmakers, they took effect on January 1st.

Documents released to Rewire show hundreds of Texans speaking out against the proposed requirements in e-mails, phone calls, letters, petitions, and a postcard campaign. One Change.org petition drew 1,831 signatures from across the country decrying the requirements. Just ten Texans—eight of them lawmakers, all of them men—contacted DSHS in favor of the new requirements.

Throughout the public comment process, DSHS insisted that the requirements were not being considered at the behest of one particular lawmaker, state representative Bill Zedler. During 2011’s legislative session, Zedler compiled a dream list of Big Brother-style information he’d like to collect about abortion-seeking Texans, but he was ultimately unable to get his fellow legislators on board with his proposal.

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Instead, Zedler’s office took the proposed requirements directly to DSHS, and at an April 2012 abortion provider stakeholder meeting concerning the implementation of Texas’ mandatory sonogram law, DSHS Health Care Quality Section Director Renee Clack told a group of about 20 doctors, activists and clinical workers that they would also discuss “some amendments the department has included that specifically relate to a request by Representative Zedler.”

After media outlets questioned DSHS’s motivations for the new rules, the department began its months-long backpedal, saying that the new requirements were the result of “a general discussion among state leadership” and that Clack “misspoke” when she name-dropped Zedler. DSHS press representative Carrie Williams touted the transparency of the rule-making process in comments to the Dallas Observer, saying:

Any person in the public can come to us at any point in time if they have a concern about a rule we have in place, a flaw in a rule or something that has to be added. Our rule-making process is very open. People can make suggestions to us and provide comment. That’s what’s happening in this case.

Indeed, in this case, it couldn’t be more clear that DSHS never intended to do anything but comply as much as legally possible with Bill Zedler’s requests.

During the public comment period that began in April 2012, DSHS heard from 2,658 individuals who were against the new rules, in addition to a letter from Planned Parenthood representing seven groups of their providers. While the vast majority of that input came via signatures on online petitions, 343 individual Texans, including 13 lawmakers, asked DSHS not to implement the rules.

But those 343 Texans were no match for the ten people DSHS chose to listen to instead. The department received exactly one letter in favor of the requirements, signed by eight male legislators: Phil King, Dan Flynn, Van Taylor, Jim Landtroop, Sid Miller, James White, Ken Paxton and, of course, Bill Zedler. It also heard from Texas Right To Life legislative director John Seago and a citizen named Mario Salinas, both in favor of the new rules. It even incorporated one of Seago’s suggestions into the new rules: abortion providers must report the type of anesthesia used in procedures.

Many of the comments received by DSHS express concern about patient privacy and the intimidation of doctors who have been given no statutory guidance on what constitutes the “complications” they are now obligated to report to the state. The new rules do incorporate two changes proposed by critics of the rules: that doctors have 30, rather than 20, days to report “complications,” and that a question about an abortion patient’s highest level of education be removed.

Amy Hagstrom Miller, the founder of Whole Woman’s Health, a comprehensive reproductive health care provider in Texas, told Rewire that the new reporting forms provided to her clinics by DSHS give her pause, particularly because the forms are filled out in part not by clinic workers and doctors, but by the patients themselves. 

“I think this will intimidate patients that the state will know so much about them,” she said.  “They will worry their confidentiality is not protected. It makes a person feel they are doing something wrong.”

Why did the Department of State Health Services ask for public comments if, in the end, it declined to listen to the vast majority of input it received? We’ll probably never know. Despite repeated requests for clarification from Rewire, the department has been closed-lipped, refusing to explain why the rules were proposed and implemented, or whether they are meant to address any existing problems.

Instead, these rules appear to be one more way for conservative Texas lawmakers to achieve their goal of making safe, legal abortion as difficult to provide, and to access, as possible–even if they have to subvert the democratic process, and the public’s will, to do it.

Roundups Law and Policy

Gavel Drop: Welcome to the New World After ‘Whole Woman’s Health’

Imani Gandy & Jessica Mason Pieklo

With the recent U.S. Supreme Court ruling, change may be afoot—even in some of the reddest red states. But anti-choice laws are still wreaking havoc around the world, like in Northern Ireland where women living under an abortion ban are turning to drones for medication abortion pills.

Welcome to Gavel Drop, our roundup of legal news, headlines, and head-shaking moments in the courts.

The New York Times published a map explaining how the U.S. Supreme Court’s ruling in Whole Woman’s Health v. Hellerstedt could affect abortion nationwide.

The Supreme Court vacated the corruption conviction of “Governor Ultrasound:” Former Virginia Gov. Bob McDonnell, who signed a 2012 bill requiring women get unnecessary transvaginal ultrasounds before abortion.

Ian Millhiser argues in ThinkProgress that Justice Sonia Sotomayor is the true heir to Thurgood Marshall’s legacy.

The legal fight over HB 2 cost Texas taxpayers $1 million. What a waste.

The Washington Post has an article from Amanda Hollis-Brusky and Rachel VanSickle-Ward detailing how Whole Woman’s Health may have altered abortion politics for good.

A federal court delayed implementation of a Florida law that would have slashed Planned Parenthood’s funding, but the law has already done a lot of damage in Palm Beach County.

After the Whole Woman’s Health Supreme Court ruling in favor of science and pregnant people, Planned Parenthood is gearing up to fight abortion restrictions in eight states. And we are here for it.

Drones aren’t just flying death machines: They’re actually helping women in Northern Ireland who need to get their hands on some medication abortion pills.

Abortion fever has gone international: In New Zealand, there are calls to re-examine decades-old abortion laws that don’t address 21st-century needs.

Had Justice Antonin Scalia been alive, explains Emma Green for the Atlantic, there would have been the necessary fourth vote for the Supreme Court to take a case about pharmacists who have religious objections to doing their job when it comes to providing emergency contraception.

News Abortion

Texas Posts ‘A Woman’s Right to Know’ Pamphlet for Public Comment

Teddy Wilson

The draft version of "A Woman's Right to Know" was published online Tuesday, just a day after the U.S. Supreme Court ruled two provisions of the state’s omnibus anti-choice law are unconstitutional.

The Texas Department of State Health Services (DSHS) quietly published a draft version of a pamphlet the state mandates physicians provide to pregnant people seeking abortion care.  

The draft version of “A Woman’s Right to Know” was published online Tuesday, just a day after the U.S. Supreme Court ruled two provisions of the state’s omnibus anti-choice law, HB 2, are unconstitutional.

There appear to be only minor changes to the previous version of the pamphlet.

The most significant change is an update stating that medication abortion can be prescribed “up to 70 days” from the pregnant person’s last menstrual period, in accordance with revised federal regulations.

The proposed revisions are available for public comment until Friday, July 29.

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Lawmakers in several states have passed laws mandating that states provide written materials to pregnant people seeking abortion services. These so-called informed consent laws often require that the material include inaccurate or misleading information.

The previous version of the state’s “A Woman’s Right to Know” pamphlet contained 34.45 percent medically inaccurate statements, according to a study by a research team from Rutgers University.

The draft pamphlet notes that there is a “greater risk of dying from the abortion procedure and having serious complications the further along you are in your pregnancy.” The pamphlet cites a study, published in 2004 in Obstetrics & Gynecology, which examined abortion statistics from 1972 to 1997. Not apparent in the pamphlet is the researchers’ conclusion, which stated that “increased access to surgical and nonsurgical abortion services may increase the proportion of abortions performed at lower-risk, early gestational ages and help further decrease deaths.”

Moreover, a 2012 study found that abortion is “markedly safer than childbirth.” The study found that the risk of death from carrying a pregnancy to term “is approximately 14 times higher than that with abortion.”

There has been only one death related to abortion complications in Texas since 2008, according to the most recently available DSHS statistics.

The draft pamphlet does not explicitly make the claim that having an abortion causes breast cancer, a claim that is often made by anti-choice activists. However, the pamphlet states that “doctors and scientists are actively studying the complex biology of breast cancer to understand whether abortion may affect the risk of breast cancer.”

The link between abortion and cancer has been repeatedly debunked by scientific research.

“Scientific research studies have not found a cause-and-effect relationship between abortion and breast cancer,” according to the American Cancer Society.

A report by the National Cancer Institute also explains, “having an abortion or miscarriage does not increase a woman’s subsequent risk of developing breast cancer.”