The Mad Men

Women dressed in Mad Men-era garb and women’s rights supporters wearing bright orange T-shirts that read “My Family Values Women” gathered in the state Senate chamber last week for a committee hearing on four measures that opponents say are designed solely to restrict access to abortion and to drive backward in time women’s reproductive rights.

On Tuesday afternoon, the Mad Men contingent returned, to watch Senators debate until nearly midnight – and then pass, on a 20-10 vote (with Brownsville Democrat Eddie Lucio joining 19 Republicans) – the bulk of those measures over to the House, just a week before the special-called session is scheduled to end.

Thanks to Gov. Rick Perry's adding abortion regulations to the session's call, four divisive measures that failed to pass during the regular session have been revived as Senate Bill 5, that would (1) require all abortion clinics to be transformed into ambulatory surgical centers; (2) require all abortion doctors to have hospital admitting privileges within 30 miles of every clinic where they practice; and (3) requiring two in-person visits with a doctor for women seeking medical abortion. Originally, SB5 would have banned abortion at 20 weeks gestation (the so-called "Pre-Born Fetal Pain Bill"); that provision was withdrawn by its author, Sen. Glenn Hegar, R-Katy.

There are a handful of bills filed that address each matter separately, Hegar filed the omnibus SB5 to incorporate each entry on the right-to-life wish list. But when the Senate gathered to debate – beginning at 5:30 pm Tuesday evening – the bill had been mysteriously revised to exclude the 20-week ban.

Sen. John Whitmire, D-Houston, questioned Hegar about the last-minute decision to pull the controversial ban. "A large number of us are kind of mystified" about the last-minute change, he said. Would it be fair to say, then, Whitmire asked, that Hegar was "actually compromising your position on this issue for political expediency?" Not so, Hegar replied. Whitmire asked how it made sense to debate a new version of the bill without opportunity to review the substitute with constituents or experts. The issues aren't new, Hegar countered, and have been raised throughout the session.

Late last week, the Senate Health and Human Services Committee considered and then passed out of committee the entire field of proposals. The committee meeting was indeed a repeat of the regular session (and portending much of what would come Tuesday evening – with terse political debate involving "life-changing decisions for the women of Texas," as Whitmire put it). The players returning to testify against each of the measures included Texas NARAL's Blake Rocap, and Carole Metcalf, who testified emotionally this spring about the horror of learning at 20 weeks that her fetus was terminally ill. And there was a contingent of enthusiastic bill supporters – including former Planned Parenthood clinic director-turned pro-life movement stalwart Abby Johnson, and Elizabeth Graham, director of the politically powerful Texas Right to Life.

To supporters, the measures would ensure that women receive high-quality care when seeking abortion (and, under the original proposal, would protect "pre-born" children from feeling pain). To opponents, the proposed regulations are unnecessary and designed solely to shutter abortion clinic operations, make it more difficult for women to obtain services, and to force women to carry their pregnancies to term regardless their individual circumstances.

Indeed, the proposal to require abortion clinics to become ambulatory surgical centers – facilities that provide a host of procedures, from plastic surgery to endoscopy on a "day surgery" basis without overnight stay – would likely have the effect of closing all but five of the state's 42 abortion-providing facilities. The costs associated with building an ASC (or retrofitting an existing facility) is extreme – roughly $300 per square foot – and the majority of regulations deal with physical plant requirements, not factors that impact patient care, providers testified. (Notably, there are a host of procedures – including vasectomies – that likewise are not required to take place in an ASC, but that are not subject to legislation that would require they be performed in such facilities.) Currently there are more than 416 ASCs across the state, but just five that perform abortion – including Planned Parenthood's South Austin facility.

A measure that would force doctors to comply with Food and Drug Administration protocols for administering drugs that induce abortion – a so-called "medical abortion" – would require a woman to make additional in-person visits and would ban off-label uses of the drugs, including to stop hemorrhaging. Is there any other drug that lawmakers have determined how doctors must use them, Sen. Wendy Davis, D-Fort Worth, asked. No, Hegar said, but there could be such measures in the future.

As far as fetal pain goes, there is no conclusive evidence that a fetus can feel pain prior to the third trimester, despite conservative lawmakers' insistence otherwise. Moreover, 20-week bans have thus far been rejected by courts – a circumstance that prompted Sen. Royce West, D-Dallas, during last week's committee hearing to question the reasonableness of Hegar's original proposal. Hegar was unfazed; looking at court decisions isn't particularly informative, he asserted. "My point is, I don't think we're able to compare [those] to what we're doing here today," he said during the hearing.

Nonetheless, on Tuesday the measure had been stripped from the bill, even though Hegar said that he still believes the ban is important – "Personally, I'd like to see a measure with fetal pain in there," he said. The decision to pull it was made in order to ensure that at least some new abortion regulations would have time to make it to the House and to Perry's desk before the session ends. "This floor substitute raises standards" for abortion care in Texas, and that's the most important thing that can be done right now to "impact the quality of care and protect life."

As for a provision that would require abortion doctors to have admitting privileges at a hospital within 30 miles away of where the abortion is performed, Davis argued that requiring the doctor to have those privileges would do nothing to improve patient care. If a woman has already returned home, miles from the abortion clinic – and away from the hospital at which the doctor has privileges – and has an emergency, should she be required to go back to that hospital and not simply present at her local, and closest emergency room? "That's a hypothetical – that's a question, an actual question, and I appreciate that question," Hegar replied. But apparently not enough to answer it: "The measure requires a higher standard of care," he said, repeatedly, during the debate.

Democratic senators did their best to block the legislation, but were ultimately unable to do so, because for the special session, Lt. Governor David Dewhurst declined to enable the conventional Senate rule requiring a two-thirds vote of the whole body. In other words, Davis suggested, the move to bring up the legislation now is merely an end-run around the legislative process for bills that "did not, would not, could not pass during the regular session." Did Perry add to the call anything that would actually reduce demand for abortion, she asked Hegar – anything to increase access to contraception? Hegar was not aware of anything. Wasn't this really about Perry's Republican presidential primary ambitions and not actually about addressing a pressing issue, she asked. Hegar could not say, he said.

In the end, Davis asked, does the legislation make women safer or provide better health care? Yes, Hegar replied. "You believe that legislators are better at deciding how to deliver patient care … than doctors," she asked, her tone incredulous. "I believe that this legislation continues to give a significant amount of flexibility … for doctors to practice medicine in this state," Hegar said. "I do not believe this legislation impedes that ability."