When Texas passed its controversial new abortion restrictions this July, proponents claimed the measures were justified both on religious grounds and because they were necessary to “protect women.”
“This legislation builds on the strong and unwavering commitment we have made to defend life and protect women’s health,” said Republican Gov. Rick Perry, before signing the bill into law.
The requirements of the new law are so onerous that all but five of the state’s 42 clinics have said they will be unable to meet them, and are expected to close. For instance, clinics that perform abortions will now need to obtain a license as an ambulatory surgical facility, when in reality many clinics provide medical abortions, which involve taking a pill that leads to a miscarriage of a very early pregnancy, up to eight weeks maximum. In other words, there is no “surgery” involved, and no need for the stretchers, gurneys, and other surgical equipment required to obtain a license as an ambulatory surgical facility.
Given the radical effect of this law, the public might have expected proponents to provide evidence of the alleged threats to women’s health that the law was designed to address.
But despite multiple calls for that evidence, anti-choice campaigners and politicians relied instead on a mix of junk science about fetal pain, and the rhetorical ploy that has become their favored political device: constant references to Kermit B. Gosnell, the rogue abortion provider who was convicted of murder and involuntary manslaughter in Pennsylvania this June.
Now, RH Reality Check is able to present what the evidence says about the safety of abortion services in Texas prior to the passage of the most recent restrictions.
We analyzed the response provided to the United States House Committee on Energy and Commerce by the Texas Health and Human Services Commission about abortion regulation and monitoring in the state. The request for information by the committee was made in May, before the new law was passed.
In answering the congressional committee, Texas gathered data from the state entities that play a primary role in regulating abortion services in that state: the Department of State Health Services, the Department of Family and Protective Services, the Texas Medical Board, and the Texas Board of Nursing.
Together, those agencies have extensive oversight of abortion services in Texas. Far from indicating that women were at risk of being harmed when seeking abortions, the documents show that the state already had one of the nation’s most proactive and aggressive systems to police abortion services and ensure that facilities were complying with those rules.
Take, for instance, the Texas Board of Nurses, which imposes roughly 2,500 disciplinary orders on nurses every year. It found only one disciplinary action that involved an abortion. In 2002, the board imposed a sanction on a nurse after a patient was diagnosed with a “septic abortion” and was treated at a hospital’s emergency room. The nurse was disciplined for failing to follow the “minimum standards of nursing,” according to the board, but those actions were “unrelated to an abortion procedure or clinic,” the board said.
Indeed, the nursing board concluded that there had been “no disciplinary action of a nurse that specifically occurred in an abortion facility” from 2008 until 2013.
The answers from the Texas Medical Board similarly showed an absence of risk to patients.
The board oversees physicians, disciplines scores of doctors every year, and took action against 58 physicians in June 2013 alone. It noted that it had taken disciplinary action for conduct related to abortion on only four occasions between 2008 and 2013, and none of those involved harm to women.
According to public records, in 2008 Dr. Robert E. Hanson Jr. paid a penalty of $1,000 for his failure to supervise adequately the practices at Whole Women’s Health in Austin. That facility was pinged in 2006 for administrative failures. None of those violations included actual harm to a patient.
A second doctor was disciplined in 2011 for allegedly failing to obtain informed consent for all abortion procedures. She was fined $5,000 and ordered to submit to monitoring from another physician, and to undergo further training.
And in 2012, the board again fined Hanson, this time for relying on a medical assistant to record a patient’s history and physical exam, instead of doing the entire assessment himself at the time that the procedure was scheduled. The board fined Hanson $3,000 and required him to undertake additional training.
Also in 2012, the board found that Dr. Alan Molson had violated state regulations by allowing his medical assistants to perform follow-up visits on patients. Like Hanson, Molson was fined $3,000 and ordered to do more training.
What of the problems identified at abortion facilities themselves, over the five-year period examined by the congressional committee?
Monitoring and inspection of health facilities is the responsibility of the Department of State Health Services, which conducts annual inspections of abortion clinics, and visits ambulatory surgical centers at least every three years, according to Carrie Williams, a spokesperson for the department.
“Our role is to make sure facilities are safe and that the state’s laws and rules are being followed to protect the health of patients,” said Williams. “We look at everything from policies and procedures to cleanliness and infection control. We review how medical instruments are cleaned and stored. We also review medical records and conduct interviews of staff and, in some cases, patients.”
The department conducted dozens of inspections every year, and it did identify several issues with abortion clinics. None involved actual harm to patients.
The most serious violations involved four Planned Parenthood clinics, which in 2009 were found to have been functioning as abortion clinics without the required licenses to do so. The clinics paid collective fines and penalties of $119,000.
Jeffrey Hons, president and CEO of Planned Parenthood Trust of South Texas, told RH Reality Check that the reason those locations were working without a license is because they were not performing surgical abortions; rather, they were administering the abortion pill, Mifepristone.
Those facilities were opened in 2004, when Mifepristone was relatively new to the United States. Planned Parenthood was advised by the state that it did not need a license so long as it was not providing any surgical procedures at those locations, said Hons.
However, five years later, in 2009, Hons was reviewing new state regulations on Mifepristone, and realized that they now indicated that the clinics were required to have licenses.
“We made application for these new licenses, and that’s what sounded the alarm,” he said. “We were the ones telling the state that we needed licenses for these places.”
Hons called the experience “surreal,” and said he agreed to settle the dispute rather than fight a prolonged and expensive legal battle over the fines. He noted that Planned Parenthood continued to cooperate with authorities throughout the period of the dispute.
Another set of violations related to four clinics’ failure to post their unique state license number on their websites. For that, each facility paid a $350 fine.
The department also noted receiving complaints against abortion facilities in each of the five years under review. In 2011, it received 25 complaints, and in 2012, it received 19. In all other years, it received between three and seven complaints.
While the department is legally prevented from commenting on complaints, it did report that every complaint was investigated. Where an investigation results in formal action against a clinic or individual, that action usually becomes a public record, and would have been included in the department’s other answers.
In other words, nothing in all of the records produced to the congressional committees suggests any hint of systemic dangers to Texas women under the system that was already in place to regulate and monitor abortion services. On the contrary, the evidence shows that Texas already aggressively policed abortion facilities, and cracked down on even minor infractions of state regulations.
Of course, there is one name prominent in its absence from this list—Douglas Karpen, who is currently under investigation by the state department of health, after anti-choice activists published interviews with three women who claim to be former employees of the abortion provider.
In those interviews, the women describe gruesome practices and allege that Karpen performed abortions past the point of fetal viability, and that he killed certain fetuses that were delivered alive.
Anti-choice campaigners have branded Karpen the “Texas Gosnell,” and have used him as an example of why, they claim, Texas’s new restrictions on abortion are necessary.
Williams, the department’s spokesperson, told RH Reality Check that Karpen’s clinics had been inspected in accordance with Texas law—Aaron Women’s Clinic was inspected on March 8, 2013, and Texas Ambulatory Surgical Center was inspected on November 5, 2010—and that the licenses for those facilities remain in good standing. Williams said the department has also conducted inspections more recently, in the wake of the new allegations against Karpen.
The Texas Medical Board also investigated Karpen earlier this year, when similar claims were made. The board concluded in February of this year that “Dr. Karpen did not violate the laws connected with the practice of medicine and there is no evidence of inappropriate behavior.”
It is impossible to say what the current investigations of Karpen will find. Nonetheless, he remains the sole example that anti-choice campaigners have pointed to as a provider who has allegedly posed risks to the public—and those allegations are yet to be proven.
Advocates for reproductive rights point out what they see as the irony of the new restrictions: that shuttering reputable clinics is likely to push women into the hands of rogue providers who are willing to break the laws.
“When it comes to abortion, people are not writing these laws because they want abortion care to happen, they’re writing them to stop it,” said Hons. “That’s why we have these laws that are so maladaptive and harmful.”
“A real review of the situation does not indicate that there is a current problem to be fixed,” he said. “The state has this solution that is desperately in search of a problem that doesn’t exist.”