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Chair Cuts Off Questions, Passes HB 2

More than 1,000 voices left unheard

By Jordan Smith, 9:00AM, Wed. Jul. 3, 2013

Reps. Sylvester Turner and Jessica Farrar listen to testimony from Rep. Jodie Laubenberg
Reps. Sylvester Turner and Jessica Farrar listen to testimony from Rep. Jodie Laubenberg
Photo by Jana Birchum

House Bill 2, the sweeping abortion regulations bill, passed out of the House State Affairs Committee shortly after midnight on an 8-3 vote after Rep. Byron Cook, committee chair, unceremoniously cut off questions of bill author Rep. Jodie Laubenberg by Democratic members of the panel.

"I think it is wrong, what we're doing," a clearly frustrated Rep. Sylvester Turner, D-Houston, told Cook. "I think we are pushing things through." Democrats on the committee – Reps. Turner, Helen Giddings, D-Dallas, and Jessica Farrar, D-Houston, each wanted an opportunity for more discussion – to question Laubenberg on a bill that Turner said he believes is "on its face unconstitutional," to offer amendments to the measure, or to seek an opportunity for those who came to the Capitol to testify, but who weren't called, to have their comments submitted in writing, the reps told reporters after the hearing. "In order for the process to work, there has to be respect" for that process, Turner said.

Some 3,000 people registered a position on the bill, but fewer than 100 were called to testify. As the hearing drew to a close, Cook said that 1,015 who wanted to testify were not offered a chance to do so.

In all, the testimony that was offered was not unlike that which has been offered in the past – both by supporters and opponents of the proposed regulations, which have been filed three times since the start of the regular session in January. There was testimony from women who said abortion had ruined their lives, and those who said access to abortion care had – quite literally – saved their lives. There were disturbing statements comparing women to cars – if cars have to meet emission standards or be junked, why not the same for abortion providers – and to shelter animals – if animals have to be taken to a "no-kill place," one witness asked, why not require the same for an unborn fetus.

And then there were the apocryphal stories – including those offered by two men who testified in favor of the bill. The first offered the story of a small-town abortionist who lured teenage girls into a "promiscuous lifestyle" and then offered them faulty birth control in order to later compel them into abortion, so that the provider could eventually make $1 million from 40,000 such procedures. What ever happened to that person, Giddings asked; and what small town had a population large enough for 40,000 abortions, she wanted to know. The witness had no answers. And then there was the pastor who said that he'd counseled women after abortion and could say that, going forward, women "settle for less in life," because of their decision to abort.

As the hour grew increasingly late, Farrar twice asked Cook how it was that of the 70-some witnesses called most had testified in favor of the measure when it was clear from the overflow rooms – 11 extra rooms were opened – that there were more people waiting to testify against the measure than for it. By what process were witnesses being called from the queue, she wanted to know. Cook said only that he was "doin' the best we can." That, said Farrar, "isn't good enough."

Amid the expected testimony, however, were several expert witnesses whose testimony called into question the necessity, or legality, of the substance of HB 2, which would all but outlaw abortion after 20 weeks, require abortion clinics to upgrade operations to those of ambulatory surgical centers – an expensive physical plant remodel that providers say would likely shutter operations of all but 5 or 6 providers statewide – and would require abortion-providing doctors to have hospital admitting privileges within 30 miles of each clinic where they perform abortions.

Indeed, the Tuesday hearing was the first time that any committee hearing these regulations had asked for testimony from the Department of State Health Services, which is tasked with regulating abortion providers. There were just five deaths connected to abortions performed in the state from 2001-2011, Ellen Cooper, DSHS facility licensing manager told the committee. And she said, she is aware of no current issues with licensing requirements, serious complications, or deaths, that would prompt the overhaul proposed by HB 2.

Stacy Wilson, general counsel for the Texas Hospital Association, who signed up to testify (and who has done so previously), but who was not called as an expert, said that her group opposes the provision that would require hospital admitting privileges. At issue, in essence, is that doctors who perform procedures outside a hospital setting – and procedures that are not performed in the hospitals, such as elective abortions – would not be granted admitting privileges. If that's the case, Turner asked, then isn't that provision of HB 2 one that "cannot be complied with" – and one that then, in effect, would "outlaw abortion" in the state?

"If no doctors can comply," Wilson said, "then the answer is yes." Could the state require hospitals to extend admitting privileges to doctors, Turner asked. That would be "an inappropriate way to guarantee the health and safety of women," she said. Moreover, she noted that women who face complications at an abortion clinic would be taken to an emergency department for treatment by staff doctors and wouldn't need admitting by anyone else.

Rep. Patricia Harless, R-Spring, challenged Wilson, saying that she could not say for sure that no doctors would be extended the privileges required by HB 2. That's true, Wilson said, "but it is unlikely" that there are, or would be, any doctors that would fit that particular bill. Austin ob/gyn Mikeal Love disagreed, telling the committee that he has signed off on an Austin doctor, giving him privileges at St. David's.

But that's not representative of the entire state, Turner pointed out, as part of what would become a heated back-and-forth with Love. Indeed, several witnesses testifying for the bill got into testy exchanges with lawmakers without Chair Cook stepping in to maintain decorum. Nonetheless, when foes of the measure spontaneously clapped for one witness late in the evening, Cook was quick to the gavel, calling for order.

After the committee had dispersed and the crowd of spectators began to leave the Capitol – chanting as they moved through the large contingent of Department of Public Safety officers called to duty for the evening – Giddings noted that the process itself was damaged by the way the evening ended up – with so many people, on both sides of the issue, left unheard. "Frankly, I think you start to damage the very institutions" tasked with carrying out democracy, she said, when voices are silenced. "I think we should be concerned." Farrar's criticism was more direct: "The process was unfair; the process was a farce," she said. "I don't know why we're here, frankly," if the majority's intent was simply to move the bill forward as quickly as possible.

In the end, for her part, Laubenberg repeatedly told the committee that she was filing the bill for no other reason than to protect the "health and safety" of women and that of five-month-old babies who "feel pain." She repeatedly refused to entertain suggestions, early in the evening, that amendments might eventually be needed; she wants to keep the bill just the way it is, she said. Roe v. Wade might guarantee a right to privacy, and to abortion, she noted, but that "right is not unqualified" and should be balanced "against the state's interests in regulation," she said. "You know me and know where my heart is and why I'm doing this," she told Turner.

Well, "maybe you can help me with this, and maybe you cannot," Turner responded. When he returns to his Houston district and sees kids without insurance and whose families are struggling – families and children that the state has cut off from insurance and other services, by slashing funding or rejecting federal money – he wonders, where is the love "for children who are here, on the face of the earth, that we see every day?" he asked. "Is our love greater for those we don't see," the unborn? "That's the issue I have. As a Christian, that is my tension with this issue, and those who advocate for it."

HB 2 now moves to the full House for debate – and possible amendments – and passage. The House returns to work Tuesday, July 9, at 10 am.

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