If lawmakers don't get the abortion restrictions they want from the Lege, they boss the health department around instead.
If you follow abortion politics in Texas — and maybe even if you don’t — you probably know that passing anti-abortion legislation is not just one of our lawmakers’ top priorities, it is also one of their top skills.
In 2011, Texas passed a mandatory sonogram and waiting period law meant to shame and scare Texans out of obtaining legal abortions. Then, in 2013, anti-choice leaders bested a 13-hour filibuster that brought thousands to the Capitol in opposition to abortion regulations that the U.S. Supreme Court recently struck down as unconstitutional. And in 2015, conservative lawmakers went after what little access to legal abortion was left for abused and abandoned teenagers, forcing many to make a difficult, and maybe impossible choice: Revealing a pregnancy to an abusive parent (or, possibly, rapist), getting kicked out of the house for being pregnant at all, or remaining pregnant against their wishes because they just don’t have a parent to give consent for their procedure.
That’s in addition to the other stuff that’s been shuffled through the Lege in recent years that keeps a hell of a lot of us from planning and raising healthy families: Defunding Planned Parenthood, refusing Medicaid expansion, making massive cuts to reproductive health funding. The list goes on.
For as good as Texas is at coming up with new and interesting ways to make not getting (or staying) pregnant as difficult as possible, you’d think our state leaders wouldn’t be shy about sharing their innovations in this area.
And yet, when health officials proposed significantly changing the way Texas abortion providers are allowed to handle fetal tissue and fetal remains in early July, nobody from the Texas Health and Human Services Commission (HHSC) said a word. The commission quietly published proposed rule changes in the Texas Register for a mandatory 30-day comment period and shuffled on its way.But reporters took notice of the fact that the state wants to mandate that abortion providers dispose of fetal tissue either by burial or cremation. (People who miscarry, terminate or otherwise lose pregnancies in Texas already have the right to decide what happens to fetal remains.)
The changes came just days after the Supreme Court took Texas to task for its unconstitutional abortion regulations. It was almost as if Texas were trying to blow some childish, half-hearted raspberries back at those mean ol’ abortion providers who’d had the gall to take the state to court, and win.
Now, HHSC certainly has the right to create rules related to the provision of abortion in Texas, though in this little democratic experiment we’re calling the United States, a bunch of bureaucrats creating extra-statutory regulations for no reason might strike folks as a little off-putting.
This isn’t the first time they’ve tried this, either. In 2012, the Texas Department of State Health Services (a division of HHSC) also proposed new extra-statutory regulations for abortion providers at the behest of a state lawmaker.
Back then, Republican state Representative Bill Zedler hadn’t been able to usher through the Capitol the reporting requirements he wanted to impose on Texas abortion providers. He wanted to collect all kinds of data about who gets abortions in Texas, and make doctors jump through all kinds of hoops — hoops other doctors don’t have to jump through — documenting whether “complications” arise from the terminations they provide.
Zedler partly got what he wanted, in the form of more stringent requirements for complication reports. (Thankfully, his desire to know the age of a fetus’ “father” and the pregnant person’s reason for termination didn’t make it into the final cut.) And there’s no reason to think this second round of behind-the-scenes rule finagling won’t be successful as well.
There’s also no reason to think it won’t have a significant impact on the provision of legal abortion in Texas. The rules could potentially act as a backdoor ban on fetal tissue donation, in addition to creating logistical hassles for providers who’ve been safely and soberly managing fetal tissue for decades.
This summer, Texas learned it couldn’t walk its entire anti-abortion wish list through the front doors of the state Capitol. Now, they’re trying to shove anything they can through the back doors and hope no one notices.