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A Back Door Ban on Abortion?

Senator would regulate clinics as surgical centers

By Jordan Smith, 12:01PM, Wed. Mar. 20, 2013

A Back Door Ban on Abortion?
Illustration by Jason Stout

To Sen. Robert Deuell, requiring abortion clinics to be ambulatory surgical centers would ensure women seeking abortion receive the "highest standard" of care. At a hearing Tuesday, advocates challenged Deuell's position, arguing that the measure would instead force abortion providers to shutter operations and would reduce access to safe abortion.

Under Senate Bill 537, written by Deuell, R-Greenville – and co-authored by Sens. Donna Campbell, R-New Braunfels, and Charles Schwertner, R-Georgetown, who, with Deuell, also sits on the Senate Health and Human Services Committee and both of whom, like Deuell, are both physicians – the state's abortion clinics would be required to adopt the same standards that apply to the state's ambulatory surgical centers, which provide a host of procedures – from plastic surgery to endoscopy – for patients on a "day surgery" basis (no overnight stay).* To Deuell, SB 537 is a proposal "simply to protect" Texas women who choose abortion. While he doesn't support abortion – and "I don't think abortion should be legal,” he said – he said the state owes it to women to "take all precautions to make sure" that abortions are performed in the "best manner possible." Indeed, in opening the testimony, Deuell said that anyone opposing the bill is "basically saying that [women] shouldn't have the very, very best in medical care."

As it stands, there are 416 ambulatory surgical centers across the state, but just five that provide abortions – and just four of those actually reported performing any abortions in 2011, according to the Department of State Health Services. Of the 72,470 abortions performed in Texas in 2011 (the most recent year for which there are complete numbers), just 16,237 were performed at one of four ambulatory surgical centers; the vast majority, 55,876 abortions, were performed at abortion clinics. Currently, there are just 37 licensed abortion clinics statewide – of those, just 11 offer surgical abortions, with the remaining providing pharmaceutical abortion, according to Health and Human Services Commission.

Supporters of the bill suggest only that these regulations are needed to ensure that women have access to the highest standard of care, and to ensure that a woman will be taken care of in the event of a medical emergency. Shouldn't pro-choice women be in favor of the bill?, committee chair Sen. Jane Nelson, R-Flower Mound, and chair of the HHS Committee hearing the bill, asked. Indeed, "every woman should be on board," opined Campbell, who suggested that this helps to put "women's health first," noting that men who have colonoscopy get greater standard of care than do women who seek abortion in a specialized abortion clinic. (That's not true, Blake Rocap, legislative counsel for NARAL Pro-Choice Texas noted in his testimony. Both colonoscopy and vasectomy procedures are commonly performed in a doctor's office.) Indeed, the strident theme of "protecting the women" infected the entire hearing – so much so that any suggestion that the bill would have unintended and potentially dangerous consequences, or that it simply isn't necessary, was met with a level of incredulity if not outright hostility by committee members who will no doubt support the measure regardless of what the evidence against it might be.

Indeed, at one point Deuell (and then Campbell) attacked former Methodist preacher John Yeaman, whose testimony questioned the necessity of all the extra regulations, and expressed the concern that women's health might truly be in jeopardy if abortion providers close up shop. "What do you base that on?" Deuell asked. "You're saying that abortion clinics would close in this state, what are you basing this on." Yeaman said he had read about the potential consequences, but noted that no one (presumably including Deuell) would know what will happen until after the regulations take effect. Not surprisingly, Deuell didn't go after supporters of the bill whose testimony might have been similarly short on hard facts – such as the pro-life advocate who testified that large numbers of women face dangerous consequences as a result of abortion because they're not performed in licensed surgical facilities.

In fact, complications from surgical abortion are reported in just .05% of cases, Heather Busby, executive director of NARAL Pro-Choice Texas, noted in her testimony. There is simply "no demonstrated need" for the greater level of regulation of abortion facilities that are already heavily regulated and audited by the state. The state already requires abortions later than 16 weeks to be performed in a surgical center. After that measure passed in 2003, only the four clinics (including Planned Parenthood in Austin and in Houston) built or retrofitted their clinics to meet the surgical center requirements.

The real purpose behind the bill, suggests Busby and others, is to regulate abortion clinics out of business – in effect creating a back door way to ban abortion. Surgical centers are subject to all manner of specific regulations that have little, if anything, to do with patient care. The state's 117-page document containing the rules for surgical centers include pages of regulations of building and retrofitting requirements – including where and how dispensers of "alcohol-based hand rubs" must be installed, how a waiting room must be configured, and how many square feet of cabinet space must be included in each examination room. All told, the requirements are expensive, costing roughly $300 per square foot, Busby noted, or upwards of $1.5 million for even a moderately-sized clinic. If abortion providers are forced to make these costly changes, the price of an abortion will likely rise above the $1,000 mark, or clinics will close. "The real issue here is access," Busby said. Deuell's bill is not about safety, she said, but about denying access – a suggestion to which Deuell visibly bristled: His life has been "dedicated to bettering the health of people," he replied. And if the new regulations "saves the life of one woman, then I say it's worth it."

The bill passed out of committee on a 5-2 vote in favor; the bill now moves to the full Senate for consideration.

*The original version of this post inadvertently promoted Campbell to a seat on the HHS Committee. We regret the error.

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