Source: Delayed Texas Abortion Data Finished Months Ago

The process of compiling much-anticipated Texas abortion statistics for 2014 — expected to reflect the impact of abortion restrictions passed by the 2013 legislature — followed its normal course up until February of this year, a health agency insider says.

But when staffers at the state Department of Health Services finished their work and prepared to release the data, the process stalled after the numbers were submitted to the department's legal department for final approval, the source said. Internal emails provided to The Texas Tribune show agency workers were then told the numbers were not ready to be released.

Since then, the agency has responded to requests for the numbers from reporters and interested parties by saying they have not been finalized.

Representatives for the department did not immediately respond to a request for comment. A spokeswoman previously said the data is still incomplete.

"If the data were final, we would release it," a department spokeswoman said last week in response to a demand by the ACLU that the department release the data. "The detailed data for 2014 isn’t final yet for Texas. We released the provisional total as soon as it was ready several months ago, but the underlying details are being reviewed for accuracy. For the last several years, Texas abortion data was typically finalized and published between March and June."

The Texas ACLU contends the agency is continuing to withhold it to mask the effects of Texas' restrictive abortion law known as House Bill 2.

Staffers have never before had to "wait on instructions" from the department's Office of General Counsel before uploading the abortion statistics to the agency's website, said ACLU-Texas staff attorney Trisha Trigilio.

The information in question would provide details on the number of Texas women who had abortions, the procedures they underwent and the types of facilities they visited. The 2014 data is of particular interest to both sides of the abortion debate because it would detail abortions in the first full year during which parts of HB 2 were implemented.

The data was finalized months ago but was left “in limbo” for several weeks after it was sent to the agency’s legal branch, according to the state employee with knowledge of the data. Staffers were then instructed to stop referring to the abortion statistics in emails and respond to public inquiries about the data by saying it was not final, the employee added, and agency emails reflect.

Frustrated by the delay, the state employee, who requested anonymity to speak candidly about the department's actions, contacted the ACLU and explained the situation. That contact prompted the organization’s letter to the health department last week in which it accused the agency of purposely withholding the statistics and instructing its employees to mislead the public about the status of that data.

In March, department emails show, a staffer with the legal department of the office of the chief operating officer distributed suggested responses for staff to use when asked about the 2014 stats: “The data you have requested are still being processed and not ready for release. Thank you for your inquiry.” A memo sent to staffers in April repeated that proposed response and asked staffers to provide printed copies of any requests for the data — and the answer supplied — to the health department’s Office of General Counsel.

State health officials in March noted a significant drop — 14.2 percent — in the number of abortions performed in Texas in 2014, with almost 9,000 fewer procedures in the state compared with the year before. At the time, a Department of State Health Services spokeswoman said she was “not sure” when more detailed figures would be available.

The state agency is not required to publicly release the abortion statistics, though it has done so annually. But it is required to release data or ask the state attorney general for permission to withhold compiled data if requested through the Texas Public Information Act, said Trigilio, the ACLU-Texas staff attorney.

“The agency hasn’t done either,” Trigilio said. “It’s just lied about whether that data exists.”

HB 2 is the subject of a U.S. Supreme Court case that could be decided as early as Thursday. During oral arguments before the Supreme Court, conservative justices on the court questioned whether there was enough evidence on the law’s impact. Justice Anthony Kennedy — considered the swing vote in the case — asked about sending the case back to a lower court to collect more evidence on the law's effect on abortion access in the state.

While the employee did not provide details about the 2014 statistics, the employee indicated there was a drop in every single type of procedure, including a significant drop in medication abortion, a procedure used to end early pregnancies. (Abortion providers have said drug-induced abortions dropped dramatically under HB 2 because of stricter requirements.)

"Yes there are some big changes in that data that would be cause for concern but hiding that data doesn’t make the differences go away," the employee said.