With the U.S. Supreme Court poised to decide the biggest abortion case in nearly a decade, the ACLU of Texas is demanding that the Department of State Health Services “stop concealing” abortion statistics for 2014 and make the information public.
In a letter sent Wednesday to department Commissioner John Hellerstedt, the ACLU accused the state agency of purposely withholding statistics that would show patterns of abortion across the state in 2014, including the number of Texan women who had abortions, the procedures they used and the types of facilities they visited.
The 2014 data is particularly significant, the ACLU said, because it was the first full year during which the state implemented provisions of the controversial abortion law known as House Bill 2. That law, which is the subject of a Supreme Court case, requires doctors performing abortions to have admitting privileges at hospitals within 30 miles of an abortion clinic and also requires clinics to maintain the same standards as hospital-like ambulatory surgical centers.
“It has come to our attention that your agency completed the relevant statistical tables in March 2016,” the ACLU letter said. “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.”
The Department of State Health Services said the data remained incomplete.
"If the data were final, we would release it," a department spokeswoman said in an email. "The detailed data for 2014 isn’t final yet for Texas. We released the provisional total as soon as it was ready several months ago, but the underlying details are being reviewed for accuracy. For the last several years, Texas abortion data was typically finalized and published between March and June."
State health officials in March noted a significant drop — 14.2 percent — in the number of abortions performed in Texas in 2014, with almost 9,000 fewer procedures in the state compared with the year before. At the time, a Department of State Health Services spokeswoman was unable to provide a timeline on when more detailed figures would be available.
The Supreme Court is reviewing the constitutionality of HB 2 in Whole Woman’s Health v. Hellerstedt, a case brought by Texas abortion providers against the state. A decision in that case could come as soon as Thursday.
Terri Burke, executive director for the ACLU of Texas, said she suspected the information might have been withheld because it showed the negative effects of HB 2.
“The logic behind HB 2 was that it was going to provide new protections for women’s health,” Burke said. “If HB 2 actually had that effect, I would think they would have rushed to get that data out to the public.”
More than 40 abortion clinics operated in the state before the Legislature passed HB 2 in 2013. Today, only 19 remain — a drop that lawyers for abortion providers suing the state argue is a direct result of the law. If the Supreme Court upholds the law, that number could fall to less than 10.
During oral arguments before the Supreme Court, Justice Anthony Kennedy — considered the swing vote in the case — also questioned whether the case should be sent back to a lower court to collect more evidence on the law's impact.
Among his few interjections were concerns that the share of medical abortions — a method used early in pregnancy — is down in Texas while the number of surgical abortions are increasing in the state.
The state’s abortion statistics could better inform the public debate on this issue, the ACLU argued. If the Department of State Health Services wants to withhold the data, which has been released annually for many years, the state attorney general must approve its legal basis for doing so.
The ACLU suggested it is willing to go to court if the state does not release the statistics.
“Should you fail to comply with this request within a reasonable time, we will explore all available legal options to vindicate the rights and principles protected by the Texas Public Information Act,” the letter said.