More Abortion Reporting Requirements Proposed
After the Lege shot them down (four times), new rules have made their way to committees
In each of the four previous Texas Legislative sessions, anti-choice lawmakers tried and failed to dramatically increase the amount of personal information that women seeking abortion would be required to provide to the state. During last year's special-called session, Rep. Bill Zedler, R-Arlington, gave it another go – even at the risk of derailing Senate Bill 7, the comprehensive health care savings bill. Apparently undeterred, Zedler has since sought to have a list of new reporting requirements put into practice via the rule-making authority of the state's health services agencies. On June 14, the Department of State Health Services Council unanimously approved the new reporting requirements, moving them forward for consideration by the Health and Human Services Commission, which will consider public comment and vote on the proposal later this year.
Zedler's end-run around the legislative process has drawn the ire of doctors, advocates, and at least one lawmaker, El Paso Dem. Sen. José Rodríguez, who penned a letter to the DSHS Council asking that a vote on the new regulations be put off "to allow legislators adequate time to examine the proposed rule in more detail and to submit comments."
State law already requires abortion providers to submit detailed information about each procedure performed in the state – including a woman's year of birth, race, marital status, state and county of residence, and number of previous live births and abortions. Under the new rules, women would also be required to provide their highest level of education. More troubling is the proposed new requirement that physicians report details about abortion procedure "complications," even though, as NARAL Pro-Choice Texas legislative counsel Blake Rocap told the DSHS Council during public comment at the end of the Thursday morning meeting, "There is no definition of what a 'complication' is, and there is no definition of what the consequences might be" for failing to comply with the vaguely worded requirement – a "grave" concern shared by Rodríguez in his letter to the council.
According to a March memo from DSHS Commissioner David Lakey to HHSC Executive Commissioner Thomas Suehs, the agency began looking at the content of Zedler's failed amendment during last year's special session "to determine if the reporting requirements could be adopted under [the agency's] current [rule-making] authority," Lakey wrote. After a first go-through, the agency determined that the "most" of the Zedler-proposed requirements were outside that authority. Indeed, Zedler's proposal – previously carried, unsuccessfully, at the Lege in 2005, 2007, and 2009 by Victoria GOP Rep. Geanie Morrison – would have required a woman not only to provide information on her educational attainment, but also to divulge the age of the father at the time of her abortion; the method of contraception (if any) that was used; the source of the referral for the abortion; the method of payment; and the specific reason she is seeking abortion (to include whether she is being "coerced or forced," has "economic reasons" for not wanting a child, is being recommended to do so by a parent or "school counselor," or if there is a sex-selective reason behind the abortion).
Nonetheless, according to the memo, Suehs instructed DSHS staff in August 2011 to "continue working through possible abortion reporting elements to see which elements are within current authority, useful for public health, feasible to obtain and not offensive to women." In the end, it seems, only the question about educational attainment fit that specific bill. The new reporting requirements for additional complications have also passed agency muster, though physicians remain concerned that the lack of specificity could be used against them at a later date, according to reporting by Andrea Grimes in the online reproductive rights publication RH Reality Check.
Whether DSHS or HHSC actually believes these rules are necessary is unclear. In an emailed response to questions posed by Grimes in April, a DSHS spokeswoman said the agency is "always looking at the requirements of our health facilities to be sure we're evolving and regulating in the best interest of patients," and that "at any time a stakeholder can come to us with comments about our rules, even when the rules are not in the midst of official revision." The email continues: "If there is a critical issue or flaw, we can consider opening rules at any time based on stakeholder and legislative input."
Of course, the concerns of doctors and advocates appear to rank lower on the stakeholder scale than does Zedler, whose interests are clearly being met even though lawmakers have repeatedly declined to pass similar measures during actual legislative sessions. And that is the point that both Rodríguez and Rocap each tried to stress in separate comments to the DSHS Council. "It gives me great concern that the Council would pass rules ... on behalf of one legislator, when his desire to see that enacted is not the will of the other ... members of the Legislature," Rocap told the council.
Neither Rocap nor Rodríguez's concerns appear to have impressed Council Chair Glenda Kane, who noted that the council was open to hearing concerns about the proposed rule during its June 13 work session (when council placed the rule on its consent agenda for Thursday, despite 129 comment cards critical of the proposal). Kane clearly bristled at the suggestion that the process had been anything less than transparent. "There is never a reason or desire ... to do anything to try to mitigate the public input into the process," she said at the close of the meeting. "If it has been done, it has been done by the public not being present at the meeting" to voice any concerns.