Unnecessary Restrictions on Abortion Care: How Democracy Side-Stepping Sausage Is Made, Texas-Style

How did one Texas legislator get the state Department of Health Services to enact requirements on abortion care that failed to pass even the Texas legislature? Documents show the answer is simple: he just asked. Yet despite inquiries, the DSHS can not justify many of the requirements and seems not to have thought them through.

See all of our exclusive coverage of Rep. Bill Zedler here.

Next week, the Texas Health and Human Services Commission Council will consider whether to adopt new abortion reporting requirements in the state–requirements that are being proposed at the behest of a Republican politician who failed to get his desired requirements passed through democratic means in the state legislature last year.

Tea Party-endorsed Rep. Bill Zedler wants the state to collect more personal information about abortion-seeking women and increase vague “complication” reporting requirements for abortion providers. The Texas HHSC is considering the new requirements as a kind of consolation prize to Zedler, who tried and failed to pass the requirements as an amendment to the Texas law that bars Planned Parenthood (and other “abortion affiliates”) from participating in the Medicaid Women’s Health Program in the state.

The amendment wasn’t added,” Department of State Health Services press officer Carrie Williams told Rewire in April, “but at the time HHSC and DSHS agreed to look at the additional requirements and determine what elements could possibly be adopted by rule.”

Rewire filed a public information request for correspondence between Rep. Zedler’s office and the DSHS to find out how the department came to be catering to one anti-choice Republican’s demands. Documents show the answer is simple: mighty politely, in true friendly Texan style. Zedler’s office asked for what it wanted, and DSHS did its best to comply with their requests.

The original version of Zedler’s amendment is farther reaching than the new requirements proposed by HHSC. Zedler originally wanted to find out, as reported by the Dallas Observer, the abortion-seeker’s:

“… age, ethnicity, marital status, the municipality in which they live, highest level of education, age of the man who did the impregnating (“father of the unborn child,” in their language), method of contraception (the shitty kind, apparently), reason for the abortion (although they can decline to respond to that one), the number of previous live births, miscarriages and abortions, who referred the patient to the physician, how the abortion will be paid for, and whether the patients has read the required “printed information” about abortion, seen a sonogram, listened to the fetal heart monitor, and had all of it explained to them by the doctor.”

The new proposed requirements require ultrasound confirmation and confirmation that the abortion-seeking person has seen printed informational materials, in compliance with Texas’ new mandatory transvaginal ultrasound law, and add soliciting the abortion-seeking person’s highest level of education to the list of information already gathered: previous live births, induced abortions and age, race, residence and marital status.

Documents received by Rewire show that DSHS started working on getting Zedler’s requests into statute before SB7–the bill to which his amendment was originally attached–had been passed. The documentation we recieved took place from June 16th-20th of 2011, the week before SB7 was approved in the Texas Legislature.

Initially, the HHSC told Phil Fountain, Rep. Zedler’s Chief of Staff, via e-mail that while “it was a pleasure talking to [Fountain], as always,” his requests to ask abortion-seekers about their “education, contraceptive methods and father’s age would not fit under DSHS’ current authority in the statute.” Contraceptive methods and “father’s” age didn’t make the cut into the new requirements, but DSHS changed its mind about education, which did make the cut. Why? The department refuses to explain, saying only that “After closer consideration, it was determined it could be added to the draft for consideration and comment.”

As to who did the determining, and why and how the decision was made, DSHS refuses to say. 

DSHS was more willing to comply with Zedler’s–via Fountain–requests for increased abortion complication reporting. The existing statute requires reporting on whether patients survived abortion, and if not, the cause of death. The new changes would require individual doctors to report abortion “complications” without defining the term, causing doctors to wonder, as Rewire reported earlier this spring, “whether, later on, the lack of direction from DSHS could be used to play “gotcha” with doctors when they don’t report complications the DSHS later determines to be relevant.”

So far, the only reason HHSC has given for any of its actions in this matter are that they’re putting into statute the personal wishes of Bill Zedler simply because he’s asked them to. When asked for even basic explanations in their reasoning, HHSC representatives only acknowledge the obvious: decisions were made. By whom? Based on what statute or precedent? With what intention in mind? To what end? Very simply: why? HHSC won’t say–and yet, they also say that they welcome public comment.

But it’s hard to imagine how the public can be expected to comment thoughtfully on these proposed changes when the changes themselves are the result of behind-the-scenes decisions made between willfully mute bureaucrats and agenda-driven legislators.

Perhaps HHSC truly put no reasoning at all behind any of its actions regarding new abortion reporting requirements–which would appear to be remarkably irresponsible, considering the real impact these requirements could have on the practices of Texas abortion providers and women seeking abortion. Perhaps HHSC believes its reasoning shouldn’t be subject to public scrutiny. Perhaps HHSC doesn’t think Texans deserve answers to reasonable questions. If so, telling Texans they’re “more than welcome to provide feedback” sends a mixed message when the only person the HHSC seems to truly hold themselves accountable to is one individual legislator.