Texas abortion providers are now complying with newly enacted rules that require them to gather more information about their patients, and to report to the state on any “complications” of the abortions they provide. But documents released to RH Reality Check in January show that the Department of State Health Services ignored the input of thousands of people asking it to reconsider or revise the new rules, opting instead to privilege the ten (yes, ten) individuals who wanted the new rules—and who asked for more stringent versions of them than originally planned.
Between April and December 2012, DSHS asked for public comment on the requirements, holding public meetings and work sessions with the Health and Human Services Commission. But those meetings largely appear to have been conducted for show; despite an overwhelmingly negative response to the new rules from health care providers, private citizens and lawmakers, they took effect on January 1st.
Documents released to RH Reality Check show hundreds of Texans speaking out against the proposed requirements in e-mails, phone calls, letters, petitions, and a postcard campaign. One Change.org petition drew 1,831 signatures from across the country decrying the requirements. Just ten Texans—eight of them lawmakers, all of them men—contacted DSHS in favor of the new requirements.
Throughout the public comment process, DSHS insisted that the requirements were not being considered at the behest of one particular lawmaker, state representative Bill Zedler. During 2011’s legislative session, Zedler compiled a dream list of Big Brother-style information he’d like to collect about abortion-seeking Texans, but he was ultimately unable to get his fellow legislators on board with his proposal.
Instead, Zedler’s office took the proposed requirements directly to DSHS, and at an April 2012 abortion provider stakeholder meeting concerning the implementation of Texas’ mandatory sonogram law, DSHS Health Care Quality Section Director Renee Clack told a group of about 20 doctors, activists and clinical workers that they would also discuss “some amendments the department has included that specifically relate to a request by Representative Zedler.”
After media outlets questioned DSHS’s motivations for the new rules, the department began its months-long backpedal, saying that the new requirements were the result of “a general discussion among state leadership” and that Clack “misspoke” when she name-dropped Zedler. DSHS press representative Carrie Williams touted the transparency of the rule-making process in comments to the Dallas Observer, saying:
Any person in the public can come to us at any point in time if they have a concern about a rule we have in place, a flaw in a rule or something that has to be added. Our rule-making process is very open. People can make suggestions to us and provide comment. That’s what’s happening in this case.
Indeed, in this case, it couldn’t be more clear that DSHS never intended to do anything but comply as much as legally possible with Bill Zedler’s requests.
During the public comment period that began in April 2012, DSHS heard from 2,658 individuals who were against the new rules, in addition to a letter from Planned Parenthood representing seven groups of their providers. While the vast majority of that input came via signatures on online petitions, 343 individual Texans, including 13 lawmakers, asked DSHS not to implement the rules.
But those 343 Texans were no match for the ten people DSHS chose to listen to instead. The department received exactly one letter in favor of the requirements, signed by eight male legislators: Phil King, Dan Flynn, Van Taylor, Jim Landtroop, Sid Miller, James White, Ken Paxton and, of course, Bill Zedler. It also heard from Texas Right To Life legislative director John Seago and a citizen named Mario Salinas, both in favor of the new rules. It even incorporated one of Seago’s suggestions into the new rules: abortion providers must report the type of anesthesia used in procedures.
Many of the comments received by DSHS express concern about patient privacy and the intimidation of doctors who have been given no statutory guidance on what constitutes the “complications” they are now obligated to report to the state. The new rules do incorporate two changes proposed by critics of the rules: that doctors have 30, rather than 20, days to report “complications,” and that a question about an abortion patient’s highest level of education be removed.
Amy Hagstrom Miller, the founder of Whole Woman’s Health, a comprehensive reproductive health care provider in Texas, told RH Reality Check that the new reporting forms provided to her clinics by DSHS give her pause, particularly because the forms are filled out in part not by clinic workers and doctors, but by the patients themselves.
“I think this will intimidate patients that the state will know so much about them,” she said. ”They will worry their confidentiality is not protected. It makes a person feel they are doing something wrong.”
Why did the Department of State Health Services ask for public comments if, in the end, it declined to listen to the vast majority of input it received? We’ll probably never know. Despite repeated requests for clarification from RH Reality Check, the department has been closed-lipped, refusing to explain why the rules were proposed and implemented, or whether they are meant to address any existing problems.
Instead, these rules appear to be one more way for conservative Texas lawmakers to achieve their goal of making safe, legal abortion as difficult to provide, and to access, as possible–even if they have to subvert the democratic process, and the public’s will, to do it.