In Letter, Texas Department of Health Accused by Ten Democratic Legislators of Subverting Democratic Process

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Analysis Politics

In Letter, Texas Department of Health Accused by Ten Democratic Legislators of Subverting Democratic Process

Andrea Grimes

Newly released documents show Texas Health and Human Services Commissioner Tom Seuhs instructed his staff to try to create new abortion reporting requirements that would please one anti-choice legislator--and also "not be offensive to women."

In opposition to new proposed abortion reporting restrictions in Texas, ten Democratic legislators have sent an open letter to Health and Human Services Executive Commissioner Tom Suehs urging him to not to move forward with the new rules, which would increase the amount of information gathered on abortion-seeking people and require doctors to report vaguely defined “complications” from abortion.

“The proposed rule does not represent the will of the legislative body and, if implemented through rulemaking, would serve to circumvent the legislative process,” wrote the legislators.

The new rules are being proposed after anti-choice, Tea Party-endorsed legislator Rep. Bill Zedler and his past colleagues were repeatedly unable to enact them through democratic means in the Texas Legislature over the past several years. Texas health officials have agreed to look into adopting the failed legislation by rule rather than law. In their letter, the Democratic legislators say this sets a “terrible precedent.”

“If this rule is published and adopted, it sets a terrible precedent and will have serious ramifications for years to come,” write the legislators.

Roe has collapsed and Texas is in chaos.

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But Texas health officials seem anxious to appease Zedler, though they are increasingly backtracking on initial openness about cooperating with the legislator.

As originally reported by Rewire, at the first public meeting discussing the new requirements in April 2012, Department of State Health Services regulatory unit manager Renee Clack said the meeting was called to discuss “some amendments the department has included that specifically relate to a request by Representative Zedler.”

DSHS’ openness about the origins of their new rule are also illustrated in documents obtained by the Austin Chronicle and shared with Rewire this week. They include a March 21, 2012 memo sent from Department of State Health Services Commissioner David Lakey to Executive Commissioner Suehs “to discuss possible reporting requirements that relate to an amendment by Representative William Zedler.” The memo describes the rules’ background thusly:

During the special session [of the 2011 Texas Legislature] Representative William Zedler offered an amendment to SB 7 that would have added additional abortion reporting requirements. This amendment was not added, but it was agreed that the Health and Human Services Commission and the Department of State Health Services would look at the additonal requirements and determine what elements could be adopted by rule.

The same memo refers to an August 2011 meeting wherein Suehs instructed his staff to “continue working through possible abortion reporting elements to see which elements are within current authority, useful for public health, feasible to obtain and not offensive to women.” 

Despite Clack’s statement and repeated Zedler name-dropping in DSHS and HHSC documents, DSHS press representative Carrie Williams told the Dallas Observer that Clack “misspoke” and that the requirements are the result of “a general discussion among state leadership that resulted in us agreeing to look into it once it was clear the Rep. Zedler amendment would not be added to SB7,” and not “at his specific request.”

Williams either could not or would not tell the Dallas Observer or Rewire who participated in the “general discussion among state leadership” or why Bill Zedler’s particular, individual wishes are being catered to considering the vast amount of legislation that doesn’t pass into law each session in Texas.

The proposed requirements would, among other rules, require abortion-seeking people to report their highest level of education and doctors to report to DSHS, within 30 days, “when abortion complications occur.” The department has provided no guidance on what might constitute a complication or what the consequences for non-compliance might be, despite requests for both from Texas physicians at the intial abortion stakeholders meeting in April.

Texas legislators, in their letter issued this week, are predominantly concerned with what appears to be a blatant subversion of the democratic process by DSHS and HHSC:

The proposed rule stems directly from legislation that has failed over the course of two legislative sessions and that repeatedly did not receive the support of the majority of the Texas Legislature. As such, we should not allow the political agenda of a single member to circumvent the democratic process and the will of the Legislature. If this rule is published and adopted, it sets a terrible precedent and will have serious ramifications for years to come.

It remains to be seen whether the letter will sway Commissioner Suehs. He has not, in the past, been particularly receptive to his pro-choice critics. Earlier this year, he sent angry and dismissive replies to Texans who opposed his signature on a rule that excludes Planned Parenthood from participating in the state’s Medicaid Women’s Health Program, writing, “Are you for real? Who is paying your bills?”

Earlier this month, Suehs announced that he would retire in August, which is before the Health and Human Services Council will meet to discuss the new reporting requirements.