Marty Schladen

El Paso Times

AUSTIN – An El Paso doctor estimates that new rules proposed by Gov. Greg Abbott would double the cost of an abortion at his clinic.

Abbott and the Texas Department of State Health Services say the proposed restrictions on the way fetal tissue can be disposed would better protect the public health. But Franz Theard, owner of the Hilltop Women’s Reproductive Clinic in El Paso, said it’s just another attempt to block access to abortion after the U.S. Supreme Court in June struck down a 2013 law that imposed other restrictions.

“I told you they were going to find something else,” Theard said, referring to a prediction he made in the wake of the Supreme Court ruling. “They sure enough did.”

If they’re implemented, the new rules would require fetal remains to be buried or cremated. Hospitals and abortion providers currently work with third-party vendors to dispose of human remains through incineration and in sanitary sewers and landfills.

On June 27, the Supreme Court struck down a controversial Texas law that placed new requirements on doctors who performed abortions and on the clinics where they take place. A majority of justices ruled that House Bill 2 didn’t protect women’s health as supporters claimed, but instead placed an undue burden on a woman’s constitutional right to an abortion.

It was regarded as the biggest abortion ruling in a generation.

Four days later, the Texas Department of State Health Services published proposed rule changes in the Texas Register that would require fetal remains to be buried or cremated.

DSHS Commissioner John Hellerstedt, a gubernatorial appointee, was the defendant in the Supreme Court decision striking down HB2. In a July fundraising email reported by the Texas Tribune, Abbott appeared to take credit for attempting to place new restrictions on Texas abortions within days of the landmark court decision.

“I believe it is imperative to establish higher standards that reflect our respect for the sanctity of life,” the email said. “This is why Texas will require clinics and hospitals to bury or cremate human and fetal remains.”

Abbott’s office could not be reached for comment.

A spokeswoman for the Department of State Health Services described the proposed rule change as an update.

“These rules were first enacted in 1989, and were updated in 1994,” Carrie Williams, the department’s director of media relations, said in an email. “The proposed rules provide updated terminology and clarify the disposition methods for fetal tissue, which includes the fetus, body parts and organs from a pregnancy.

“The draft rules clarify that fetal tissue, regardless of gestational age, must be subjected to one of several methods of treatment and disposal, such as burial or cremation. These methods are allowed in current rule along with other options. The draft rules propose removing language about discharging fetal tissue to a sanitary sewer system or landfill and also remove language about grinding, which is an outdated disposal term, as options for disposal.”

In a letter to the department, the Texas Medical Association raised questions about how the new rule would work.

For example, the group asked, would clinics be required to obtain death certificates for aborted fetuses? Also, would the rules apply to women who have spontaneous miscarriages at home?

A spokesman for the anti-abortion group Texas Right to Life suggested at a hearing Thursday that women who have miscarriages at home be explicitly exempted from the rule.

But Theard, the El Paso doctor, said that was just one aspect of the proposal that makes it impractical.

“I don’t know how they’re going to implement it,” he said.

Opponents of the rule also are saying that it echoes an aspect of HB2 that the Supreme Court deemed unconstitutional – that it is dressing up obstacles to abortion as ways of protecting health.

The Supreme Court ruled that it was wrong for HB2 to require abortion clinics to meet stricter standards than medical facilities which perform more dangerous procedures.

Similarly, the proposed rule change singles out fetal tissue from other human tissue for no apparent health reason, said Heather Busby, executive director of NARAL Pro-Choice Texas, an abortion-rights group.

“This is clearly an end-run around the Constitution,” she said. “They’re trying to cut off access to legal, safe abortion.”

Texas Right to Life spokeswoman Emily Horne said the new rule would serve an important public purpose.

“In this case, it’s a baby, it’s an entire human body,” she said. “It restores some human dignity.”

Horne and those who oppose the proposed rule say they don’t know how much it would cost to implement it. Neither, apparently, does the Department of State Health Services.

Renee Clack, director of the department’s Health Care Quality Section, “determined that the department has identified a potential fiscal impact but does not have information sufficient to quantify the impact as the proposed changes to the rules reflect disposition methods that were previously available,” the proposed rule says. “It is presumed that there was a cost to all of the previously available disposition methods and the department has no information to suggest that the cost of implementing the proposed changes would result in any greater cost to small and micro businesses or to persons who are required to comply with the rules.”

Theard estimated that it would increase the cost of an abortion dramatically.

“If the abortion is $500, the burial would be at least $500,” he said. “It’s going to at least double the price for no benefit.”

Williams said state officials have received more than 19,000 comments so far on the proposed rule.

“Once the rules are finalized they will be posted in the Texas Register and would be effective 20 days later,” she said. “We don't have a firm timeline to share yet on how quickly this work will happen but are aiming to finalize as soon as possible, hopefully before this fall.”

Also, some Republican lawmakers say they plan to file bills requiring similar procedures when the legislative session starts in January.

However, opponents say they plan to sue. They predict success after a federal judge earlier this month blocked an Indiana law containing similar provisions.

Busby noted that Texas taxpayers already have paid more than $1 million in legal fees plus however much 2013’s special legislative sessions cost - only to see the Supreme Court invalidate HB2.

The proposed rule change is more of the same, she said.

“Greg Abbott has been fundraising off of this,” she said. “This is the governor pushing his political agenda through a public health agency.”

Marty Schladen can be reached at 512-479-6606;mschladen@elpasotimes.com; @martyschladen on Twitter.