Despite legislative failure, state may collect more abortion data.

The Texas Department of State Health Services (DSHS) has proposed new rules requiring abortion facilities to collect and report even more information on their patients than they already do.

That may sound familiar, because Republican state Rep. Bill Zedler of Arlington hoped to implement changes like these in the last legislative session—but his proposal died in committee. So Zedler skipped the legislative process and asked DSHS to collect the information anyway. They seem ready to comply.

At an April 5 stakeholder meeting, DSHS heard concerns from “about 20 abortion providers, pro-choice advocates and clinic workers,” as Andrea Grimes reported at the pro-choice blog RH Reality Check. DSHS Health Care Quality Section Director Renee Clack told the crowd that the meeting was mainly about Texas’ new mandatory sonogram law and exclusion of Planned Parenthood from state funding, but also to cover “some amendments the department has included that specifically relate to a request by representative Zedler.”

Carrie Williams, a press officer for DSHS, confirms Zedler’s involvement. “During special session,” she told the Observer, “Representative Zedler offered an amendment to SB 7 that would have added additional reporting requirements for abortion providers. The amendment wasn’t added to the bill, but at the same time, DSHS agreed to look at the additional requirements and determine what elements could possibly be adopted by rule.”

Apparently they found some.

The DSHS already collects information on the age, race, marital status, county, number of previous live births, number of previous abortions, gestational age at the time of abortion, type of abortion, and type of facility where the abortion was performed. The information is aggregated, analyzed, and published in publicly accessible reports on the DSHS website. (Williams avers that, as required by statute, this and all abortion-related data is presented in ways that prevent identification of any patient, doctor, or facility.)

The proposed rule change would add to the collected data the date of the abortion, the patient’s highest level of education, the date of the patient’s last menstrual cycle, the method of pregnancy verification, whether consent was obtained for patients younger than 18, whether the patient viewed the state-provided printed material, whether the sonogram image was shown and described and the heart sounds made audible, and the method used to dispose of fetal tissue and remains.

It would also require a new form to be filled out by abortion-providing doctors that reported, within 20 days of discovery, any complications arising from the abortion itself. As Grimes writes, “DSHS said it would leave the determination of what constitutes a ‘complication’ to individual doctors’ discretion, raising among some gathered providers the question of 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.”

Zedler’s original bill, H.B. 1602, included the new complications form. It also would have added the above, plus the age of the “father of the unborn child”—to use the bill’s own loaded language—the method of (attempted) contraception, the reason for the abortion (the only optional question), the source of the woman’s referral to an abortion-performing physician, and more. That bill specifies its purpose its “protecting the life and health of a pregnant woman seeking an elective abortion and, to the extent constitutionally permissible, the life of the woman’s unborn child.”

Williams was less clear about how the new data would promote patients’ health. “It’s in the patient’s best interest if we have clear information about the facilities where they go get care,” she said. “And it does provide some data for public health trend analysis, a more complete picture of what’s going on.”

Zedler did not return calls for comment.

Oklahoma passed a law like Zedler’s in 2010, requiring details on every abortion to be collected and posted to a public website. It immediately spawned a lawsuit and was vetoed by Gov. Brad Henry, who said laws like it had been declared unconstitutional in the past and that it would probably result in a long, expensive legal battle for the state.

But if Zedler gets his way, DSHS will implement his amendment without it ever being subject to potential veto. DSHS doesn’t plan to present a final draft to its decision-making committee until June 14. As Grimes points out, DSHS Assistant Commissioner for Regulatory Services Kathy Perkins assured the concerned at the meeting: “there’s a lot of opportunity here to provide input.”