State Agency Finalizes Abortion Regulations

The Politics of Prevention

The Politics of Prevention is an occasional series on the effects of state policy on women's health services.

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The Texas Department of State Health Services finalized strict new abortion regulations on Friday, claiming that none of the 19,000 public comments on the rules provided evidence that they are unconstitutional.

“The department is aware of no comments that explain how particular abortion-seeking patients will face unconstitutionally long travel distances, unconstitutionally long wait times or unconstitutionally high costs for abortion services in any particular part of the state,” according to the department’s background and justification for the rules, published in the Texas Register.

Gov. Rick Perry called lawmakers back for two special legislative sessions to ensure the anti-abortion regulations — including nearby hospital admitting privileges for abortion doctors and a ban on the procedure after 20 weeks — passed. Although thousands of protesters descended on the Capitol to support a filibuster of the proposed rules by state Sen. Wendy Davis, D-Fort Worth, Republican lawmakers eventually passed the omnibus abortion bill.

Part of the new law took effect in October, and many abortion clinics that do not meet the new requirements have been unable to perform the procedure. But the department wrote in the Texas Register that commenters failed to identify particular clinics that would be permanently shut down by the new rules. 

Furthermore, the department wrote that the state could be reasonably skeptical of allegations of future harm, given abortion providers’ failure to prove in a federal lawsuit that particular clinics would be forced to close if the admitting-privileges requirement went into effect.

“Those allegations proved to be overstated because multiple providers that allegedly would be forced to close nonetheless received admitting privileges and either stayed open or reopened,” according to the department. “Not one of the comments received by the department provides any basis to believe that abortion providers would be unable to make similar adjustments and likewise comply with the rule.”

Amy Hagstrom Miller, executive director of Whole Woman’s Health, which operates five abortion clinics in Texas, called the department's claim that it doesn't know of any abortion clinics that have closed or will close "preposterous." She emphasized that the new restrictions have already caused abortion facilities in the Rio Grande Valley, Killeen and Waco to stop performing abortions, leaving thousands of women without access to care.

“Women can still decide to terminate a pregnancy, but thousands of them can no longer actually access safe, professional medical care to receive that termination,” Miller said in an email to the Tribune. “A right is meaningless if you cannot act on it. Without providers, the right to an abortion is an abstraction that does not exist for thousands of Texan women.”

Abortion providers in Texas have challenged the constitutionality of two laws that took effect in November: the admitting-privileges rule and another requiring doctors to follow federal guidelines — rather than a common, evidence-based protocol — when administering drug-induced abortions. The rules finalized on Friday also require abortion facilities to meet the same standards as ambulatory surgical centers starting in September.

Although six abortion facilities already qualify as ambulatory surgical centers, only three of them currently have a physician on staff with hospital admitting privileges. The department wrote in the rules that it's aware of three ambulatory surgical facilities that abortion providers plan to open in Dallas, San Antonio and Houston by September.

In November, the U.S. Supreme Court ruled 5-4 that it would not intervene in the abortion providers’ case or reinstate an injunction by a lower federal court that blocked implementation of the laws. The 5th Circuit Court of Appeals in Louisiana overturned that injunction on Oct. 31, which allowed the law to take effect. The case on the law's constitutionality will still proceed in the 5th Circuit, which has scheduled a hearing in January.

As the case moves through the courts, roughly a third of abortion providers operating in Texas have discontinued abortion services because they do not have a physician with hospital admitting privileges. Some facilities that discontinued services when the law first took effect now have physicians who have obtained hospital admitting privileges, such as the Whole Woman’s Health facility in Fort Worth.

Planned Parenthood was forced to stop performing abortions at four facilities in Texas when the new law took effect in November because those facilities do not have physicians with such privileges. Planned Parenthood facilities that offered abortions in Bryan, Midland and San Angelo have also recently closed.

Although the finalization of the new rules are a "deeply troubling development," said Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas, the organization would continue to evaluate its options and take steps to secure women's access to health services.

"These restrictions will do nothing to protect women's health and safety, which is why doctors and leading medical groups — as well as thousands of Texans — opposed them," Wheat said in a statement. "By cutting off access to safe, high-quality medical care, these restrictions will endanger women's health and safety."

As WOAI in San Antonio reported, a federal judge in Houston also ruled on Friday that two universities, East Texas Baptist University and Houston Baptist University, will be exempt from a provision in the federal Affordable Care Act that requires employers to provide coverage for contraception and abortion-inducing drugs in employees’ health plans. Although the Obama administration provided an exemption to the rule for churches and some religious institutions, other organizations often affiliated with religion, such as universities and hospitals, are not exempt from the rule.

The lower court case will likely be impacted by a decision from the U.S. Supreme Court, which plans to consider two other cases that challenge the contraception coverage mandate under Obamacare: a case filed by the Green family, which owns Hobby Lobby, and a case filed by the Mennonite owners of Conestoga Wood Specialties in Pennsylvania. The owners of both companies oppose abortion and argue that they’ll be forced to pay millions of dollars in fines for refusing to provide health care coverage that violates their religious beliefs.

This story was produced with the support of the Dennis A. Hunt Fund for Health Journalism, a program of the USC Annenberg School of Journalism's California Endowment for Health Journalism Fellowships, and in partnership with Kaiser Health News, an editorially independent program of the Henry J. Kaiser Family Foundation, a nonprofit, nonpartisan health policy research and communication organization not affiliated with Kaiser Permanente.