News Abortion

Texas State Health Services Received More Than 19,000 Comments Against Abortion Law

Andrea Grimes

A record number of Texans asked health officials to do whatever they could to mitigate the damage of the state's new omnibus anti-abortion law.

The Texas rulemaking agency tasked with implementing part of the state’s omnibus anti-abortion law received more than 19,000 comments from residents asking it to lessen the negative impact of HB 2, which reproductive rights supporters anticipate will close all but six abortion clinics in the state. State health officials are expected to finalize the rules, which require Texas abortion facilities to meet ambulatory surgical center standards, this week.

According to the San Antonio Express-News, the Department of State Health Services (DSHS) received 19,365 comments—19,100 of them in opposition to the law—a record number that “flooded the inbox” of Texas health officials during a 30-day public comment period.

Data show roughly 19,100 individual commenters urged regulators to tweak final rules to include a grandfather clause for current facilities, an effort to prevent widespread clinic closures. On the flipside, about 265 people wrote to regulators saying they need to follow the Legislature’s intent and implement rules.

A DSHS spokesperson told the paper that the agency did not have the leeway to include grandfather clauses. She told the Express-News, “For us to have authority to grandfather facilities or offer waivers, that ability would have had to have been written into the statute.”

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Reproductive rights supporters are celebrating the flood of comments as a victory unto itself. Austin abortion rights activist Jessica Luther, who in October exhorted her fellow Texans to write to state health officials about the proposed rules implementing HB 2, responded to the news by writing that Texans “showed DSHS that they are still watching, still angry, and still ready and willing to let everyone know.”

The state health services council itself, which advises on these kinds of rulemaking decisions, appears to agree with the more than 19,000 Texans who filed comments against the law. Earlier this year, the council took a symbolic but powerful stance against HB 2 by declining to vote on the proposed rules at all.

But ultimately, Health and Human Services Executive Commissioner Kyle Janek, a former Republican state senator, has the final word on how his agency will deal with the law, and one of his conservative colleagues told the Express-News that they fully expect Janek to “implement the will of the Legislature.”

News Abortion

New Data Shows Drop in Texas Abortion Rates After HB 2

Teddy Wilson

The driving force behind the overall reduction appears to be a dramatic decrease in the number of medication abortions: The number dropped from 16,756 in 2013 to 5,044 in 2014.

The Texas Department of State Health Services (DSHS) released Thursday the state’s abortion statistics for 2014, which show a decrease in the number of abortions in the state compared to the previous year.

The data release comes after the American Civil Liberties Union (ACLU) of Texas claimed that DSHS deliberately delayed releasing the information to hide it from the public. It also follows on the heels of the U.S. Supreme Court’s historic decision striking down two provisions of the state’s omnibus anti-abortion law, HB 2.

The total number of abortions in the state decreased from 63,849 in 2013 to 54,902 in 2014a reduction of 8,947 abortions.

Reproductive rights advocates say the data, which offers a look at the effect of HB 2 in the first full year of its implementation, provides further evidence of the law’s negative impact on access to abortion care.

“We will leave it to statisticians to undertake deeper analyses of this data, but at first glance the numbers demonstrate the devastating effect House Bill 2 had on the women of Texas,” said Trisha Trigilio, staff attorney for ACLU of Texas, in a statement.

The driving force behind the reduction appears to be a substantial decrease in the number of medication abortions: The number decreased from 16,756 in 2013 to 5,044 in 2014.

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HB 2 prohibits anyone other than a physician from dispensing abortion medications. At the time that the bill was signed into law, it also required the physician follow then-outdated FDA protocols. The federal regulations have since changed, increasing the time a pregnant person has to receive a medication abortion, from 49 days to 70 days of gestation.

The statistics also show a slight increase in the number of pregnant persons who traveled out of state to obtain abortion care. The number of abortions that took place “out of state” was 754 in 2014, compared to 681 in 2013.

However, data from other states suggest a much larger increase during that time period. As Rewire previously reported, statistics from Arkansas, Kansas, Oklahoma, and Louisiana appear to indicate at least 1,086 patients traveled to those states from Texas to obtain an abortion in 2014.

The DSHS’ 2014 abortion statistics also show that HB 2 had a disproportionate effect on women of color and women in low-income communities. In 2013, there were 24,063 abortions obtained by Latinas, and in 2014 that number fell to 19,654a decrease of 18.3 percent. Additionally, Black Texans saw a decrease of 7.7 percent, while there was a decrease of 6.7 percent among white Texans.

Trigilio explained in a statement that the statistics reflect the actual intent of proponents of HB 2 and explain why the state agency kept the information “out of the public eye” prior to the Supreme Court decision. (For its part, DSHS said in response to the ACLU’s claims that it had not released the data because it wasn’t final yet.)

“Given the overall drop in abortions—especially in vulnerable communities along the border—as well as the precipitous 70 percent drop in medication abortions, these numbers show that this law never had anything do with women’s health,” said Trigilio.

Heather Busby, executive director of NARAL Pro-Choice Texas, told the Austin American-Statesman that she was not surprised by the data because she has been “hearing firsthand” from people how difficult it is to obtain abortion care in the state.

The statistics are “further validation that the Supreme Court ruled correctly,” Busby said.

Republican Lt. Gov. Dan Patrick said during an interview Thursday on KFYO that the Supreme Court is “corrupt.” Patrick, who was among HB 2’s most strident supporters, argued that the statistics are a positive outcome.

“Our true purpose was to make sure the environments were safe for women, but obviously if you have fewer of abortions that’s something to celebrate,” said Patrick

Lawmakers passed the omnibus abortion bill in 2013 under the pretenses of protecting women’s health and safety. Since the law took effect, there have been multiple reports documenting the detrimental effect it has had on patients’ reproductive health care.

The 2014 abortion statistics also reveal that it continues to be safer to have an abortion than to carry a pregnancy to term in Texas: Between 2008 to 2013, the most recent years for which data is available, there were 691 maternal deaths in Texas, compared to just one death due abortion complications from 2008 to 2014.

Analysis Law and Policy

What Monday’s Supreme Court Decision Means in the Fight for Abortion Rights

Jessica Mason Pieklo

Monday's decision striking two provisions of Texas' HB 2 doesn't just threaten similar laws nationwide; it could be the basis for finally stemming the onslaught of anti-science abortion restrictions in the states.

Read more of our coverage of Whole Woman’s Health v. Hellerstedt here.

Abortion rights advocates have insisted, since the beginning of the fight over targeted regulation of abortion providers (TRAP) laws, that despite anti-choice lawmakers’ claims to the contrary, the evidence proved these restrictions harmed rather than advanced patient safety. On Monday, the U.S. Supreme Court finally listened.

Monday’s decision in Whole Woman’s Health v. Hellerstedtwhich struck as unconstitutional Texas’ requirements in HB 2 that all doctors performing abortions in the state have admitting privileges at a nearby hospital and that all clinics meet the same requirements as stand-alone surgical centers—is not just a win for advocates and patients in Texas. It produced an opinion that has the potential to turn back the seemingly endless wave of restrictions from the states and to reinforce abortion as a fundamental right.

First things first. Whole Woman’s Health is a data-heavy opinion, and there is probably no better justice to pen one than Justice Stephen Breyer. The man seems to live for statistical analysis. He may offer up rambling hypotheticals during oral arguments, but his written opinions are more often than not grounded in data.

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The reason this matters is that both the conservatives on the Roberts Court and their supporters in the Fifth Circuit have tried their damnedest for years to sidestep piles and piles of facts. Such as the fact that in 2013, the year Gov. Rick Perry (R) signed HB 2 into law, the number of Texans who traveled out of state to have an abortion increased to 681, a jump Rewire reported as amounting to more than the previous four years combined. Conservatives also tried to explain away the fact that prior to the implementation of HB 2, there were 41 facilities providing abortion services in the state; by the end of 2013, 16 of those facilities had either stopped providing abortion services or closed altogether. And they tried to manipulate the legal standard governing how courts review abortion restrictions to do so. Justice Breyer, his liberal colleagues, and even noted abortion rights skeptic Justice Anthony Kennedy finally put a stop to all that nonsense. Here’s how.

When upholding the Texas abortion restrictions, the Fifth Circuit relied heavily on a line of reasoning in Gonzales v. Carhartthe 2007 Supreme Court case that upheld the so-called federal partial-birth abortion act. As part of that decision, the Court ruled that when there is a question of scientific or medical uncertainty, legislators could essentially pick a side they agree with and draft laws accordingly. We’ve all witnessed what happened next. Anti-choice lawmakers in the states went bananas concocting abortion restrictions with not much more than a hand-wave that those restrictions were grounded in science and designed to advance patient safety. The Fifth Circuit Court of Appeals took that ruling one step further in the fight over HB 2 and ruled that once legislators announce their justification for an abortion restriction, there was little, if anything, the federal courts could do to second-guess that reasoning.

Not so, the Court ruled Monday. “The statement [by the Fifth Circuit] that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law,” Breyer wrote. “Instead, the Court, when determining the constitutionality of laws regulating abortion procedures, has placed considerable weight upon evidence and argument presented in judicial proceedings” holding that the “Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake.”

Justice Breyer put that last part in italics just to drive home that yes, when it comes to the fundamental right to abortion, the federal courts are not simply rubber stamps for state lawmakers.

With that point made clear, Breyer then laid out—basically in a listicle—the number of places the Fifth Circuit got its review of the data wrong as to the effect of admitting privileges on the availability of reproductive care. It’s an impressive list that goes on for pages and includes “[a] collection of at least five peer-reviewed studies on abortion complications in the first trimester, showing that the highest rate of major complications including those complications requiring hospital admission—was less than one-quarter of 1%” as “[e]xpert testimony to the effect that complications rarely require hospital admission, much less immediate transfer to a hospital from an outpatient clinic.”

There’s more, but Breyer summed it up nicely: “In our view, the record contains sufficient evidence that the admitting-privileges requirement led to the closure of half of Texas’ clinics, or thereabouts. Those closures meant fewer doctors, longer waiting times, and increased crowding.”

Moving on to those claims made by attorneys for the State of Texas that the ACS provisions in particular advanced patient safety, Justice Breyer dropped some more data bombs. “Nationwide, childbirth is 14 times more likely than abortion to result in death, but Texas law allows a midwife to oversee childbirth in the patient’s own home,” Breyer wrote.

Colonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion. The mortality rate for liposuction, another outpatient procedure, is 28 times higher than the mortality rate for abortion. Medical treatment after an incomplete miscarriage often involves a procedure identical to that involved in a nonmedical abortion, but it often takes place outside a hospital or surgical center. And Texas partly or wholly grandfathers (or waives in whole or in part the surgical-center requirement for) about two-thirds of the facilities to which the surgical-center standards apply. But it neither grandfathers nor provides waivers for any of the facilities that perform abortions.

How good does it feel to hear the Supreme Court call shenanigans on lawmakers who insist the best way to protect the health and safety of patients is by making comprehensive reproductive health care impossible to access? Probably as good as it feels to hear the Supreme Court shut down in the same opinion all the nonsense from abortion rights opponents claiming rogue provider Dr. Kermit Gosnell is proof positive that all abortion providers are dangerous predators that require the kind of regulation advanced in HB 2. “Gosnell’s behavior was terribly wrong. But there is no reason to believe that an extra layer of regulation would have affected that behavior,” Breyer wrote. “Determined wrongdoers, already ignoring existing statutes and safety measures, are unlikely to be convinced to adopt safe practices by a new overlay of regulations. Regardless, Gosnell’s deplorable crimes could escape detection only because his facility went uninspected for more than 15 years.”

Breyer went on: “Pre-existing Texas law already contained numerous detailed regulations covering abortion facilities, including a requirement that facilities be inspected at least annually. The record contains nothing to suggest that H. B. 2 would be more effective than pre-existing Texas law at deterring wrongdoers like Gosnell from criminal behavior.”

And: scene.

Immediately, Monday’s decision means that similar TRAP restrictions in other Fifth Circuit states like Louisiana are likely to be found unconstitutional. In states like Missouri or Kansas, it’s too soon to tell how the decision will affect those kinds of laws, but advocates are no doubt looking into that issue right now given the opening Monday’s decision creates.

And importantly, it makes it much more difficult for anti-abortion lawmakers to advance additional restrictions like “dismemberment bans” without being able to scientifically prove those laws actually advance patient care. These are laws that would effectively criminalize surgical abortions pre-viabilty, and are anti-abortion lawmakers’ latest attempts to cut off access to abortion while claiming to advance patient safety.

This is why Whole Woman’s Health v. Hellerstedt has the potential to reach far beyond TRAP laws in the fight for comprehensive reproductive health care. Finally, we’ve got a Supreme Court decision that demands facts over rhetoric and data over belief, and doesn’t fall into the “difficult decision that people disagree on” false equivalence. Monday’s decision is a clear, data-driven defense of the importance of access to comprehensive reproductive health care and an affirmation of abortion as a fundamental right. And that kind of defense has been a long time coming.