|Many of the advocates at the meeting who provided testimony spoke precisely to this power that DSHS has when drafting rules: they can do "additional" things when writing rules and interpreting laws. As the DSHS representative noted, this is not out of the ordinary. Testimony focused on the areas where the Council considering the draft rules could possible make decisions that would lessen the impact on clinics that provide important reproductive healthcare services to thousands of Texans across the state.
Ellen Sweets, a long time activist who testified during the special sessions this summer, pointed out many instances where the requirements for Ambulatory Surgical Centers did not apply to the services provided in abortion facilities. As no incision is made, and the number of physicians in a room at the time the procedure takes place is lower than that regulated by ASC rules, technical requirements about room size were unnecessary, in her opinion, and should be disregarded in the rule making process.
The woman presenting the draft rules, it would seem, agreed with Sweets. When examining the existing rules regarding ASC's and abortion facilities, she had this to say about ASC regulations: "They are not being adopted in total, because there are some sections of the ambulatory surgery rules that don't apply."
But it seems that it is in the definition of applicability that advocates and the DSHS disagree. Sweets and many others argued that the differences between what happens in an abortion facility and what happens in an ASC are significantly different and, therefore, certain technical requirements about the physical aspects of the facility should be disregarded where they do not apply. As an example of their definition of applicability, the representative said, "...the abortion statute requires an annual inspection. So, we did not adopt the inspection process for ambulatory surgical centers." Further, she said, "This bill does not require abortion facilities to be license as Ambulatory Surgical Centers. It requires them to meet the standards of Ambulatory Surgical Centers, and that is a key difference."
Perhaps, for her, this is "key" because it saves the clinics the cost in time and money of becoming licensed by the state. This "difference" is not, however, enough to save the clinics from the overwhelming expense of converting their existing facilities to meet these requirements.
Throughout the process of presenting the draft rules, members of the Council praised the dedication of those writing the rules to stick as closely as possible to House Bill 2. But the example of the requirements for inspections makes clear that certain aspects of this bill were up to interpretation by those writing the rules. Clearly, the issues of applicability brought up by advocates at the open meeting did not fall within their definition of "conforming" to the bill.
On Thursday the DSHS Council was schedule to vote on whether to send the rules back to drafters for the purpose of making changes or to send them on to the Commissioner for approval. At the meeting, the motion to vote on the drafted rules did not get a second motion. The intent of this decision on the part of the council has been interpreted in a few different ways. Where the Texas Tribune sees "tacit approval," activist and writer Jessica Luther sees a stand against the rules and their impact on women in Texas.
Luther called the decision not to vote "unprecedented." Though the refusal of the Council to second the motion does not stop the rules from moving on through the process, Luther maintained that "now they have registered the only form of protest they have."
The rules now move on to Commissioner Kyle Janek to be posted for public comment for 30 days, after which the majority will go into effect on October 29th.