June 24, 2016 — Officials in the Texas health department have not released data on the number of abortions provided in the state since the implementation of an omnibus antiabortion-rights law (HB 2), even though staffers have completed work on the data, the Texas Tribune reports.
The data reflect the number of women who sought abortion care in Texas, the type of abortion care provided and the facility where it was provided (Ura, Texas Tribune, 6/22).
The Supreme Court on Monday is expected to issue a ruling in a case, Whole Woman's Health v. Hellerstedt, challenging two provisions of HB 2. One provision requires abortion clinics in the state to meet the same building standards as ambulatory surgical centers, and the other requires abortion providers to have admitting privileges at local hospitals.
The Center for Reproductive Rights, which represents the group of abortion providers challenging the law, argues that HB 2 is unconstitutional, creates an undue burden for Texas women who live far away from the nearest clinic and does not promote the state's interest in improving health. If the court rules for the state, the number of clinics will fall to about 10, compared with about 40 before the law took effect.
The case centers on the meaning of the Supreme Court's 1992 ruling in Planned Parenthood v. Casey, which held that states cannot place an "undue burden" on abortion access. Under the Casey precedent, a law is unconstitutional "if its purpose or effect is to place substantial obstacles in the path of a woman seeking an abortion before the fetus attains viability."
During oral arguments, Justice Anthony Kennedy weighed whether it would be helpful to remand the case back to the lower court to gather more data on how the law affected abortion access in the state.
ACLU calls for release of data
Earlier this month, the American Civil Liberties Union (ACLU) of Texas sent a letter to Texas Department of State Health Services (DSHS), calling on the agency to "stop concealing" 2014 data on abortion provision in the state.
State officials in March released preliminary data showing a 14.2 percent decline in the number of abortions provided in the state in 2014. According to ACLU of Texas, the finalized 2014 abortion data is important because that was the first full year during which the state implemented provisions under HB 2.
ACLU of Texas said it would consider filing a legal challenge if DSHS does not release the data (Women's Health Policy Report, 6/17).
Source: Data has been in 'limbo'
A DSHS insider told the Tribune that the process for compiling the 2014 abortion statistics was on course until February. However, the data have been "in limbo" since they were submitted to DSHS' legal office for final approval, according to the source.
In March, DSHS staffers were told to stop discussing the data in emails and to tell the public that the data were not yet finalized, the Tribune reports, citing both the internal source and agency emails. Further, according to department emails, the legal department of the office of the chief operating officer in March provided responses for inquiries regarding the 2014 data. The suggested response stated, "The data you have requested are still being processed and not ready for release." An April memo reiterated the suggested phrasing and asked staffers to submit any requests for information to DSHS' Office of General Counsel (OGC).
According to the source, there was a decline in every type of abortion procedure reported in the data, according to the Tribune. The employee stated, "Yes there are some big changes in that data that would be cause for concern but hiding that data doesn't make the differences go away."
Following the delay on the data, the source contacted ACLU of Texas, spurring the organization's demand for information. Trisha Trigilio, a staff attorney for ACLU of Texas, said DSHS employees have never before been asked to "wait on instructions" from OGC before publishing the data.
Trigilio noted that while the state is not required to post the information publicly and may ask the state attorney general to keep the information private, it cannot withhold the data when requested through the Texas Public Information Act. "The agency hasn't done either," she said (Texas Tribune, 6/22).