Texas Uses Rule Change to Push Backdoor Abortion Regulations

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Less than one week after the Supreme Court reprimanded the state of Texas for its abortion regulations, Governor Greg Abbott and the Department of State Health Services (DSHS) decided to abandon the legislative process for a more direct route to abortion regulations: rule making.

Without an announcement, and only the bare minimum of required notifications, DSHS posted a proposed rule change that could devastate access to abortion care in Texas.

The rule change would update the procedures that abortion providers follow for handling embryonic or fetal tissue, requiring that all tissue be buried or cremated instead of allowing them to follow their standard procedure (which was also created by the state).

Not only does this again insert the state into what should be a private decision by people seeking abortion care, it could also threaten abortion providers’ ability to provide care if they are unable to create the new relationships needed to follow the new rules.

Texas is not the first state to attempt to change the procedure for disposing embryonic or fetal tissue. In Indiana, a similar policy passed as a part of a larger abortion regulation bill. Pattie Stauffer, Vice President of Policy for Planned Parenthood Indiana and Kentucky, told The Atlantic that they were facing difficulties finding businesses willing to work with them to meet these new standards. “It’s not like we have hundreds of people that are interested in working with us,” she explained.

And it isn’t just the stigma of working with abortion clinics that could cause problems. The Executive Director of the Indiana Funeral Directors Association and the Superintendent of cemeteries in Evansville, Indiana were both focused on the logistics when they spoke to The Atlantic about Indiana’s new law. Not only would following the law require new processes for utilizing equipment designed for adult people to cremate embryonic and fetal tissue, but they also need a place for the disposed tissue to go. And until these logistics are sorted out, abortion providers are unable to provide care to people seeking abortion services.

In her testimony to the Health and Aging Committee at the Ohio legislature opposing a similar bill that passed this May, the Deputy Director of Pro-Choice Ohio argued that the proposed legislation was not really about public safety or the need to regulate the disposal of embryonic or fetal tissue. “What it is,” she said, “is one more law that will make it harder for abortion clinics to operate in this state with absolutely no basis in medical science or medical need.”

For his part, Governor Abbott didn’t bother with the pretense of medical necessity. In a statement from his office, a spokeswoman explained: “Governor Abbott believes human and fetal remains should not be treated like medical waste, and the proposed rule affirms the value and dignity of all life.” In other words, the state is no longer pretending that this regulation has anything to do with medicine. It’s about forcing a specific set of beliefs onto all people in Texas seeking abortion care.

Because DSHS is pushing this rule the rules process, they are avoiding the opportunities for opposition and compromise that come from filing policy and following the legislative process. However, there is an opportunity for people to tell DSHS that they don’t support these changes.

During the public commentary period until July 31st, Texans can let the DSHS know that this rule change is unnecessary and unacceptable by phone (call (512)834-6775), mail (Allison Hughes, Health Facilities Rules Coordinator, Health Care Quality Section, Division of Regulatory Services, Department of State Health Services, Mail Code 2822, P.O. Box 149347, Austin, Texas 78714-9347) or through email to Allison.hughes@dshs.state.tx.us.

Update: NARAL Pro-Choice Texas has sample commentary language to help you get started.

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About Author

Genevieve Cato

Genevieve Cato is a feminist activist and a native Texan. While not writing for the Burnt Orange Report, she can be found working for NARAL Pro-Choice Texas, serving as a community member of the Communications Committee for the Lilith Fund for Reproductive Equity, and drinking copious amounts of pretentious local craft beers.

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