Orange-shirted supporters of reproductive rights on Wednesday expressed to the State Health Services Council their concerns about what enforcement of newly-enacted abortion regulations will do to access to abortion care and family planning services for Texas women. Almost certainly, those concerns will remain unheeded.
At issue are requirements embodied in the controversial omnibus abortion regulation House Bill 2, which lawmakers passed in a second-called special session to ban abortion after 20 weeks, tighten regulation of medicinal abortion, require abortion doctors to have hospital admitting privileges, and ensure that abortion clinics meet standards applied to ambulatory surgical centers.
It is on that last issue – changing standards for abortion facilities – that the Council, which approves administrative rule changes, considered testimony this afternoon. DSHS is tasked with implementing the provisions of HB 2, Kathy Perkins, DSHS’ assistant commissioner for regulatory services, told the Perry-appointed Council, and to do so the agency tracked and merged portions of existing abortion facility regulations with those in place for ASCs. Notably, Perkins said, the new law does not require abortion facilities to be “licensed” as ASCs, but instead requires that clinics “meet minimum standards” applied to their surgical center counterparts. “[A]nd that is a key difference,” Perkins said, meaning the ASC regulations were not “adopted whole” by DSHS in creating new regulations for abortion providers, she noted. Still, that is likely a distinction without much difference at all for the 37 clinics now regulated solely by the state’s already strict abortion facility requirements.
Indeed, ASCs – day-stay centers that handle a variety of surgical procedures performed by multiple medical personnel and requiring anesthesia and actual surgical incisions – are subjected to a host of regulations, many of them costly facility plant requirements – including regulations about the size of operating rooms and hallways, and requirements for air-flow controls, issues critical when actual surgery is performed. Those are requirements that abortion facilities will have to meet if they want to continue providing abortion care in Texas. But other requirements for ASCs – including state reporting requirements and inspection intervals will not be applied to abortion providers. That means abortion facilities will not only need to transform their physical plant to meet the elaborate ASC standards, but will also have to continue complying with other abortion facility regulations already in place – regulations that are actually more strict that those currently in place for ASCs, including a requirement that all abortion providers face yearly inspection. ASCs are only required to be inspected every three years (though, according to testimony provided at the Capitol earlier this summer, because of a lack of DSHS personnel to do so, ASCs are now often inspected only every five or six years).
The ASC regulations go overboard, advocates for reproductive rights continue to warn, and their costly nature will likely force closure of all but five of the state’s abortion providers, facilities already operating as ASCs. Abortion is not a surgical procedure, they note, it is a medical one, where patients are awake during the procedure and able to walk after it is finished, unlike patients seeking a myriad of services at one of the state’s ASCs.
As such, a number of witnesses testifying before the Council suggested that the DSHS should mitigate the damage likely to be done by the new law by creating “waivers” from ASC requirements, or to allow for the grandfathering of facilities in good standing with the state. That, however, is not possible at this point; because the text of HB 2 did not contemplate any exceptions, neither can DSHS regulators, said Carrie Williams, director of media relations for DSHS.
But without intervention, witnesses said, Texas is on the precipice of traveling back more than four decades, to a time when abortion services were still sought after, but were unregulated and unsafe. “Without your assistance” to mitigate the coming damage, long time East Austin resident and activist Ora Houston told the Council, “this will be the kind of health care Texas will provide: Unsafe and inadequate.”
The Council is expected to vote in favor of the regulations at their Thursday session; the regulations will then be posted online and in the Texas Register and will be open for comment. They must be adopted and ready to go by Jan. 1, 2014.
A lawsuit seeking to block enforcement of the omnibus regulations package is expected to be filed this fall.
This article appears in August 23 • 2013.