DSHS Rules: The Right Not to Have an Abortion

On Dec. 27, the Texas Department of State Health Services adopted new regulations that will require most Texas abortion facilities to transform their operations to meet standards consistent with "ambulatory surgical centers." Announcing the rules, the DSHS noted that "some licensed abortion facilities may not be financially capable of complying" with the new regulations, though DSHS "cannot accurately estimate the impact of the adopted rules on licensees." (Texas Register, Dec. 27). Still, DSHS "nevertheless believes" that in passing the new regulations the Legislature "recognized these potential consequences but also considered the state's vital interest in preserving potential life and improving patient safety, and concluded that the ASC standards would not unduly burden a woman's right to an abortion."

Whether that's true, of course, depends on who you ask. Sarah Wheat, vice president of community affairs for Planned Parenthood of Greater Texas, which operates family planning and abortion clinics from Dallas to Austin, said the current regulations are the most extreme Texas has seen, and are designed and destined to negatively impact access to safe and legal abortion care. "It's not a question of if clinics will be impacted," she said. "It's a question of how many will be affected."

The legislation at issue is among four provisions contained in House Bill 2, the omnibus abortion bill passed during the third special-called session of the Legislature. The bill restricted medication abortions, banned all abortion after 20 weeks, required abortion-performing doctors to have hospital admitting privileges at hospitals within 30 miles of each clinic where they perform abortions, and required all abortion clinics to meet standards imposed on ASCs – day-surgery centers, where procedures requiring anesthesia and actual surgical incisions are performed.

All abortions performed at 16 weeks or later were already required to be performed in ASCs, and there are now six ASCs (of more than 400 statewide) that provide abortion care. Whether any of the remaining abortion clinics previously regulated under separate (in many ways more restrictive) state regulations can remain open remains to be seen. Among the ASC requirements are costly and unnecessary physical plant improvements that foes of the law have argued will price current providers out of business, leaving thousands of women across the state without meaningful access to abortion care.

Nevertheless, according to DSHS, which received nearly 20,000 individual comments related to the new clinic requirements, none of the comments "provides any basis to believe that abortion providers would be unable to make [the] adjustments and ... comply with the rule." The agency notes that the same accusations were made regarding the hospital-admitting privilege portion of the law that took effect in October (after first being struck down by a federal district court and then reinstated by the 5th Circuit Court of Appeals, pending a full hearing on appeal). And while roughly a dozen clinics were immediately forced to cease providing abortion care, several have since obtained the necessary admitting privileges and have resumed operations – including the South Austin Plan­ned Parenthood clinic (which is also an ASC) and Whole Wom­an's Health in Fort Worth. DSHS argues that this transition of some clinics explains why it could be "reasonably ... skeptical" about current claims that the ASC rules might reduce abortion care access even further – potentially to just the six clinics currently regulated as such. Indeed, DSHS notes that it has received reports that three new ASCs are likely to come online in Dallas, Houston, and San Antonio by Septem­ber, when the new rules will take effect.

According to DSHS spokeswoman Carrie Williams, most of the comments received by the agency were negative. Among those complaints are that the department failed to incorporate an existing provision of the ASC regulations that would grandfather those facilities in operation before the rules take effect. Applied to abortion clinics, that would allow the 30 currently licensed abortion facilities to remain in operation, and require only newly constructed facilities to be regulated under the new rules. In response to those complaints, DSHS notes that abortion clinics could have been grandfathered under the ASC rules had they sought to do so when those regulations were initially enacted by the Legislature. The department asserts that it has no authority to provide for abortion clinics to be shielded from the new regulations; similarly, the department says it has no ability to exempt from the regulations clinics that provide only pharmaceutical (i.e., medication) abortion. Under HB 2, even those clinics must meet surgical center rules.

Although the agency insists that the rules will improve women's health and will not burden their right to abortion, providers remain skeptical. "At every step of the way these [provisions] have been so controversial," Wheat said. "Unfortunately, our concerns continue. Women's health and safety isn't enhanced by blocking access to safe and legal abortion care." Indeed, Whole Woman's Health spokeswoman Fatimah Gifford says that under the proposed regulations, all but one of WWH's six Texas facilities would likely close; only the WWH's ASC in San Antonio would remain open.

"The [DSHS] statement and issuing of rules that ignore thousands of Texans' comments is shocking in its radical political stance and willful ignorance of medical facts and public opinion," WWH founder and CEO Amy Hagstrom Miller said in an emailed statement. Taken together, the state argues that the regulations in HB 2 do not "present an undue burden [on women] and argues that Texas women still have a right to make the decision to have an abortion," she said. "Indeed ... women can still decide to terminate a pregnancy, but thousands of them can no longer actually access safe, professional medical care to receive that termination. A right is meaningless if you cannot act on it. Without providers, the right to an abortion is an abstraction that does not exist for thousands of Texas women."

The ASC rules took effect Jan. 1, but won't be enforced until September. Meanwhile, the 5th Circuit is slated to hear a full appeal of the pending HB 2 lawsuit, which challenges the admitting-privileges requirements and restrictions on medical abortions, on Monday morning, Jan. 6.