Who Said the War on Evidence is Over, Just Because the Supreme Court Said It Was?

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Yesterday, the lead authors of the February New England Journal of Medicine article about the decrease in access to reproductive healthcare caused by the 2011 cuts to the Women’s Health Program published a revealing look at the circumstances surrounding the collaboration that cost Dr. Rick Allgeyer his job as the director of research for the Health and Human Services Commission. Is There Any Room Left for Empirical Research in Family Planning? was published online by Health Affairs, the peer-reviewed health and public policy journal in publication since 1981.

In the article, Joseph Potter and Amanda Stevenson explain how the NEJM article came into being. They acknowledge that they originally came to study the effects of the cuts to the WHP as expert witnesses for Planned Parenthood. They first met Allgeyer at the trial where Planned Parenthood affiliates sued the state of Texas, unsuccessfully, over being excluded from providing family planning services through WHP (aka, the 2011 cuts). He was the state’s expert witness in the case.

Here’s how the collaboration began:

The legal challenge to the exclusion was unsuccessful. But in the months following the trial, we (Potter and Stevenson), attorney for the plaintiffs Pete Schenkkan, Allgeyer, and Allgeyer’s colleague Imelda Flores-Vazquez, all collaborated on an analysis to determine which of the two sides’ arguments was borne out. About three years later, the resulting paper was published. We found that the exclusion of Planned Parenthood from the Texas Women’s Health Program was associated with a relative reduction of 35.5 percent in the provision of IUDs and implants and a relative reduction of 31.1 percent in the provision of injectable contraceptives. Among users of injectable contraception we found a 27 percent increase in Medicaid-paid deliveries. [Emphasis mine]

You can see what went wrong. The state of Texas is not interested in learning “which of the two sides’ arguments was borne out.” At least not when any of the research is provided by academic researchers whose work is funded, in-part, by a foundation that supports abortion. That was the takeaway from Senator Jane Nelson’s operatic response in regard to the NEJM article. She immediately asked HHSC for a new study of the effects of the 2011 cuts, one she could trust, as well as for an “explanation as to how two Commission employees’ names appeared as co-authors of this study, which was funded in part by the Susan T. Buffet Foundation — a major supporter of Planned Parenthood.” Five days later, Dr. Rick Allgeyer was history.

The central question posed in the Health Affairs piece is whether there continues to be a role for empirical research in policy making.

We appear to be witnessing a foreclosure of the space for collaboration between academic institutions and state government agencies, and a shrinking space for empiricism in debates over politicized health policies.

While this shift in itself is very significant, we need to consider this question in an even broader context, the one at the heart of the Supreme Court’s decision on Whole Women’s Health v. Hellerstedt: that of evidence. The absence of credible medical evidence to support Texas’s claim that HB2 actually improved women’s health was the central factor in the court’s decision. Justice Breyer writes,

And the [Fifth Circuit] court’s requirement that legislatures resolve questions of medical uncertainty is inconsistent with this Court’s case law, which has placed considerable weight upon evidence and argument presented in judicial proceedings when determining the constitutionality of laws regulating abortion procedures. See id., at 888–894. Explicit legislative findings must be considered, but there were no such findings in H. B. 2. The District Court applied the correct legal standard here, considering the evidence in the record— including expert evidence—and then weighing the asserted benefits against the burdens. [Emphasis mine]

The word “evidence” appears in the majority opinion 13 times.

In case Justice Breyer didn’t know it, here in Texas, we’re fighting a war on evidence. Frankly, it’s the bane of Texas Republicans’ existence. They have a so-called think tank devoted to churning out the most outrageous research you could possibly imagine. They are dismissive and rude to professionals, academics and policy experts when their testimony in legislative hearings includes actual empirical evidence that counters the talking points they receive from the bills’ backers. Outstanding state employees “retire” when they stray from the party line.

But the state isn’t just discounting the importance of evidence by rejecting its relevance in policy making or making arguments before the Supreme Court. Texas is also very busy keeping evidence out of the hands of affected citizens, journalists and policy advocates.

On June 15, the ACLU of Texas wrote a letter to HHSC executive director John Hellerstedt about the commission’s attempt to conceal its data regarding the number of abortions in Texas in 2014. The commission claims that the data is not finalized.

It has come to our attention that your agency completed the relevant statistical tables in March 2016. Since that time, upper-level supervisors within DSHS have instructed employees to mislead the public about whether these statistical tables are complete, and to refrain from sending email about the statistics in order to avoid creating a paper trail.

DSHS has refused to fulfill dozens of Public Information Act requests for these statistics, including requests from journalists, academics, and research institutions. Instead, under instructions from the Chief Operating Officer’s General Counsel, DSHS has falsely reported that the statistics are still being processed and are not ready for release.

We write to demand that you either release the 2014 statistical tables or publicly state the legal basis you claim for withholding them.

The letter goes into detail about the ways the commission has worked to suppress dissemination of this information. It is incredible. And chilling:

When a government institution disregards the Public Information Act, it not only erodes public trust in government, it also robs the people of their ability to hold the government accountable to its mission.

So, what we have here is a case of a state that just lost the most significant abortion case of the last 10 years because it did not provide needed (or any) evidence, doing everything in its power to keep information from becoming public. Why would it do that? Why not just release the data? As reported in The Texas Tribune on June 22, the data has been in the hands of the Department of State Health legal department since February.

If you’re like me, you’re starting to wonder what is going on. Why the delay? The data either shows a decrease, which would be a total win for anti-abortion Texas Republicans, or it shows an increase, pretty unlikely considering the number of abortion clinics that closed in 2014 due to the implementation of HB2.


If the number of abortions performed in Texas went down in 2014, could that have been the effect of those fantastic regulations? The ones that were in front of the Supreme Court? Why aren’t the Republicans singing this news from the rooftops? This would be a dream come true.


Is it possible the data shows that some groups of Texans experienced changes in the number of abortions more than others? Maybe according to where they live? Or their economic level? Or their race?

Could the data about 2014 Texas abortions possibly show that the burden was undue?

Until the Department of State Health releases this data, we will never know.

What we do know is that our state government is keeping this information from us. Until it is released, we will not know what the state knew, and when it knew it.

It’s also highly ironic that the state stopped work on finalizing this data the same month its director of research, revered for his mastery of data and trends in Texas health care, the person the state actually chose to be its expert witness in its case to keep Planned Parenthood out of the Women’s Health Program, was forced to resign. One possible explanation for the data not being finalized could be that there was no one in place to finalize it. Again, until HHSC starts treating the people of Texas like they work for us, not for our elected officials, we will not know.

What I do know is that I live in a state where state officials seek to control and repress information. Where journalists and civil rights organizations routinely are denied access to state records and the attorney general’s office is expert in excluding information from Public Information Requests. Where we are more likely to sue the federal government than accept scientific evidence.

Make no mistake about it. This is all completely intentional, no matter how absurd or stupid it may seem.





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