Texas' Department of State Health Services relied on cherry-picked facts and unsubstantiated rumors when it explained its reasoning behind the codification of the state's new omnibus anti-abortion law.

"Protestors sing 'we're not gonna take it' after Governor Perry signed HB 2 into law.

NARAL Pro-Choice TX / Twitter

In late December, the Texas Department of State Health Services announced the official adoption of the rules that will allow it to enforce the state’s newly enacted omnibus anti-abortion law, which places heavy restrictions on abortion providers and has, to date, forced about a third of the state’s legal abortion providers to stop performing the procedure.

Opponents of HB 2, who converged upon the Austin capitol building by the thousands during debate over the bill last summer, continued their fight against the regulations even after the law’s passage, submitting an unprecedented 19,000 comments to the Department of State Health Services (DSHS) while state bureaucrats decided how to implement the law. Even the state health services council, a panel that advises DSHS staff on rule implementation, declined to vote to approve the rules.

DSHS, of course, had no choice but to implement the law, tasked by anti-choice state legislators with establishing rules that require abortion-providing physicians to obtain admitting privileges at local hospitals, mandate that abortion providing facilities meet the standards of ambulatory surgical centers (ASCs), and require doctors who prescribe medication abortion to do so according to 13-year-old Food and Drug Administration guidelines. The law also bans abortion after 20 weeks.

Critics of the law say DSHS has taken the least liberal interpretation of its intent, particularly with regard to language concerning ASCs that requires abortion facilities to have male and female staff locker rooms, elaborate HVAC systems, and other medically unnecessary requirements that have little direct impact on patient care.

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Explaining its reasoning behind the new rules in the Texas Register, DSHS provides detailed responses to the thousands of commenters who opposed HB 2. But in that explanation, DSHS relies on what in some instances is highly questionable reasoning and evidence that, had DSHS taken time to do its due diligence, would have powerfully undermined its own case.

In its lengthy defense of the new rules, published December 27, the department responds point-by-point to the law’s opponents, who it asserts “misunderstand the rights at issue” because they were unable to cite legal precedent containing “any decision that has interpreted the Constitution to afford abortion providers’ rights to operate particular clinics.” The italics are DSHS’s; as long as abortion remains technically legal, it’s not the department’s problem if doctors can’t actually perform one.

While the department’s snarky take on the law is disappointing, the specifics of where clinics have and have not closed, or stopped providing abortions, seem to be fuzzy, at best, to DSHS. Perhaps because if it were to look at the reality of the situation on the ground, it would find that its claims—that many providers have obtained admitting privileges and multiple new ASC abortion providers will soon open—are downright false.

In the Register explanation, the department appears to be relying on the same flawed methodology it finds fault with in its opponents, arguing that those who oppose HB 2 could provide only “generalized claims” of providers being unable to comply with the law. But a DSHS spokesperson told Rewire in plain language that the department itself depended on “indirect information” when it formed its rules pertaining to doctors who have been unable to obtain hospital admitting privileges.

DSHS called commenters’ “allegations” that providers would be forced to stop providing abortions “overstated because multiple providers that allegedly would be forced to close nonetheless received admitting privileges and either stayed open or reopened.”

How does DSHS know that? Can it specify where these “multiple providers” are located? Not really. Via email, DSHS spokesperson Carrie Williams told Rewire, “We heard directly from at least one provider (Whole Woman’s Health in Fort Worth) and also received indirect information (news accounts, statements made by facilities, etc.) that others were able to get privileges.”

The unspecified “others,” besides the provider at the Whole Woman’s clinic , are doctors at a Dallas clinic and at two Planned Parenthood clinics in Austin and Fort Worth. But if DSHS was combing “news accounts” to find out where abortion is no longer available, it would have swiftly become clear to DSHS that many more clinics have stopped providing abortions than have obtained privileges: Two clinics in the Rio Grande Valley, and clinics in Midland, Lubbock, Stafford, and Killeen have all either closed entirely or stopped providing abortions. If DSHS trusts Fund Texas Women, a nonprofit abortion assistance fund that has been tracking clinic closures since November, it can find a comprehensive list of providers that no longer perform abortions.

But because four clinics—well, going by DSHS’s laissez faire accounting style, one and “others”—obtained privileges, DSHS states, “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.”

If DSHS doesn’t believe “the comments received by the department” provide any evidence to show the harm done by HB 2, it ought at least to believe the “news accounts” it admits to getting its information from. It can’t be an “overstatement” to say that many clinics will stop providing abortions, when many clinics did, indeed, stop providing abortions. If “news accounts” are all DSHS needs to verify whether clinics have stopped providing procedures, then those “news accounts” certainly support critics’ claims more thoroughly than DSHS’s.

Further in its response to critics, DSHS seems to believe that the onus falls on commenters to prove, conclusively, that clinics have shut down or stopped providing abortions, rather than on it, as the clinic regulating body, to do that verification work.

When defending its ambulatory surgical center regulations, DSHS writes that commenters provided “only generalized claims that some unspecified number of unidentified clinics might struggle to comply with the rule or close for some undetermined time on account of it.”

If DSHS has concerns about “generalized claims” but finds unspecified “news reports” to be credible, it perhaps could have sought out news reports documenting the closure of Harlingen’s Reproductive Services clinic or Whole Woman’s Health of McAllen’s cessation of abortion services, neither of which are ambulatory surgical centers or could be by the September 2014 deadline required by law.

Instead, DSHS claims in the Texas Register that it is “aware of reports that at least three new ASCs that plan to open and comply with the rule in Dallas, Houston, and San Antonio by September of 2014.”

When Rewire asked DSHS to specify which “three new ASCs” it had knowledge of, its spokesperson directed us to the Texas Women’s Reproductive Health Initiative (TWRHI), a nonprofit group that announced in the fall of 2013 that it planned to open one abortion-providing ambulatory surgical center by September 2014, not three.

Indeed, it doesn’t appear as though DSHS made any effort to verify TWRHI’s progress, despite using the organization as validation for its new rules. If DSHS had bothered to check, it would have found that TWRHI hasn’t even obtained official nonprofit status, and has raised absolutely no money for its medical facility.

When Rewire emailed TWRHI’s co-founder, Charles Cohen, to find out the status of its ASC, he said that “donations to TWRHI have been nonexistent on a grassroots basis.” And those donations were the foundation of Cohen’s business plan.

“Without donations for the capital development, this project can’t happen,” Cohen continued. But that’s not the only obstacle: the “nonprofit” isn’t a nonprofit yet, he says, because “the IRS is dragging their feet on our 501c3 application.” His organization “should have been approved in November,” says Cohen, adding that “the lack of a tax-free exempt status isn’t helping” his organization’s complete lack of funding.

Apart from the appalling failure of due diligence in DSHS’s ambulatory surgical center claims, it’s remarkably myopic, even disingenuous, for DSHS to suggest that its evidence—”indirect information” and “news accounts”—uniquely shows that clinics have not closed, and that doctors have been able to obtain admitting privileges. In fact, DSHS’ own “evidence,” when taken as a whole and not cherry-picked to cast HB 2 in the least harmful light, demonstrably shows that clinics have closed, and that many doctors have not been able to obtain admitting privileges.

The question of whether doctors can obtain admitting privileges, and whether any ambulatory surgical centers will exist in the future to provide legal abortion procedures, is not some kind of debatable technicality, or inside baseball quibbling. The availability of abortion is at the very crux of the “undue burden” issue now making its way through the federal court system. A state health department should not be using the kind of one-sided evidence-gathering favored by anti-choice politicians. In doing so, it does a powerful disservice to the people it is meant to serve.