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State Agency Finalizes Abortion Regulations

Gabriel Cristóver Pérez for KUT News
Activists on either side of the abortion debate clash inside the Capitol on June 12, 2013. The Texas Senate approved new abortion restrictions that night.

The Texas Department of State Health Services finalized strict new abortion regulations on Friday, claiming that none of the 19,000 public comments on the rules provided evidence that they are unconstitutional.

“The department is aware of no comments that explain how particular abortion-seeking patients will face unconstitutionally long travel distances, unconstitutionally long wait times or unconstitutionally high costs for abortion services in any particular part of the state,” according to the department’s background and justification for the rules, published in the Texas Register.

Gov. Rick Perry called lawmakers back for two special legislative sessions to ensure the anti-abortion regulations — including nearby hospital admitting privileges for abortion doctors and a ban on the procedure after 20 weeks — passed. Although thousands of protesters descended on the Capitol to support a filibuster of the proposed rules by state Sen. Wendy Davis, D-Fort Worth, Republican lawmakers eventually passed the omnibus abortion bill.

Part of the new law took effect in October, and many abortion clinics that do not meet the new requirements have been unable to perform the procedure. But the department wrote in the Texas Register that commenters failed to identify particular clinics that would be permanently shut down by the new rules. 

Furthermore, the department wrote that the state could be reasonably skeptical of allegations of future harm, given abortion providers’ failure to prove in a federal lawsuit that particular clinics would be forced to close if the admitting-privileges requirement went into effect.

“Those allegations proved to be overstated because multiple providers that allegedly would be forced to close nonetheless received admitting privileges and either stayed open or reopened,” according to the department. “Not one of the comments received by the department provides any basis to believe that abortion providers would be unable to make similar adjustments and likewise comply with the rule.”

On Friday, officials with Whole Woman's Health and Planned Parenthood said they would respond after reviewing the finalized new rules.

Abortion providers in Texas have challenged the constitutionality of two laws that took effect in November: the admitting privileges rule and another requiring doctors to follow federal guidelines — rather than a common, evidence-based protocol — when administering drug-induced abortions. The rules finalized on Friday also require abortion facilities to meet the same standards as ambulatory surgical centers starting in September.

Although six abortion facilities already qualify as ambulatory surgical centers, only three of them currently have a physician on staff with hospital admitting privileges. The department wrote in the rules that it's aware of three ambulatory surgical facilities that abortion providers plan to open in Dallas, San Antonio and Houston by September.

In November, the U.S. Supreme Court ruled 5-4 that it would not intervene in the abortion providers’ case or reinstate an injunction by a lower federal court that blocked implementation of the laws. The 5th Circuit Court of Appeals in Louisiana overturned that injunction on Oct. 31, which allowed the law to take effect. The case on the law's constitutionality will still proceed in the 5th Circuit, which has scheduled a hearing in January.

As the case moves through the courts, roughly a third of abortion providers operating in Texas have discontinued abortion services because they do not have a physician with hospital admitting privileges. Some facilities that discontinued services when the law first took effect now have physicians that have obtained hospital admitting privileges, such as the Whole Woman’s Health facility in Fort Worth.

Planned Parenthood was forced to stop performing abortions at four facilities in Texas when the new law took effect in November because those facilities do not have physicians with such privileges. Planned Parenthood facilities that offered abortions in Bryan, Midland and San Angelo have also recently closed.

Becca Aaronson develops data interactives and reports for The Texas Tribune. After an internship in fall 2010, she was hired by the Tribune to help cover the 82nd legislative session. She previously interned at the Houston Chronicle. Becca is a native of Austin who graduated from Scripps College in Claremont, Calif., with a degree in cultural theory.
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