5 Troubling Flaws in Texas’s Investigation of Planned Parenthood
Texas Attorney General Ken Paxton speaks at a Texas state Senate hearing on Planned Parenthood in July. (Photo: Bob Daemmrich)
In response to a series of “sting” videos targeting Planned Parenthood, Texas Attorney General Ken Paxton’s office is investigating whether or not Houston’s Planned Parenthood Gulf Coast, and other Planned Parenthood clinics, are in compliance with state and federal regulations regarding fetal tissue donation.
A source close to the investigation, however, tells Yahoo Health that when it comes to Paxton’s investigation, popular opinion inside the State House is that it has nothing to do with Planned Parenthood, per se — but rather women’s health and reproductive rights in general.
As there has been no fetal tissue donation or collection in effect in Texas since the 2010-2011 calendar year — and even then, only one Planned Parenthood clinic participated in fetal tissue donation programs — state legislation to ban the collection of fetal tissue would fail to accomplish much from a legislative perspective.
Yahoo Health acquired the transcript of the Texas state Senate’s Health and Human Services Committee hearing held on July 29 for the Senate’s own investigation into Planned Parenthood’s activities in the state. This investigation by the Senate committee, chaired by Republican State Senator Charles Schwertner, is allegedly a wholly separate investigation than that being conducted by the Attorney General’s office.
The Committee hearing transcript suggests an attempt to impose additional restrictions on reproductive rights in the state — and ultimately make abortion all but impossible to access in Texas.
Women’s Rights Under Attack in Texas
Paxton was the first witness to testify to the Committee. His testimony closely echoed the language suggested by Americans United for Life (AUL), the antiabortion legal advocacy group that has admitted to having a close consulting relationship with the Center for Medical Progress that released the “sting” videos, in its Dignified Final Disposition Act — the bill the group drafted for state legislators to propose and attempt to pass in their own legislatures.
The introduction to the Dignified Final Disposition Act states: “Unborn children should not be disposed of as ‘medical waste’ when they die before birth, regardless of whether their deaths are spontaneous, accidental, or induced.” The Act proposes that, unless a mother authorizes otherwise, all fetal remains and products of conception are released to a funeral director and that a fetal death certificate is issued.
Related: Understanding Fetal Tissue Donation — and Why It’s Such a Divisive Topic
The proposed legislation also states that in cases of abortion, as opposed to miscarriage, a physician is not required to discuss with a mother the final disposal of fetal remains prior to the abortion, nor does it require a physician to obtain authorization from a mother for the final disposal of fetal remains after the abortion.
In other words: Were this bill to pass in state houses, fetal tissue donation resulting from abortion would be rendered illegal — and all women who have an abortion will lose the right to control what happens with the fetal tissue.
Paxton stated to the Committee: “But more than any misdeeds involving the sale of aborted baby parts is a fundamental truth. The true abomination in all of this is the institution of abortion.”
Texas state Senator Judith Zaffirini. (Photo: REUTERS/Mike Stone)
Paxton’s conviction seemed to waiver, however, when pressed about the specifics of his investigation. Texas state Senator Judith Zaffirini, a Democrat, asked Paxton whether his investigation will make comparisons between the practices of Planned Parenthood and that of other entities, such as hospitals, that also provide fetal tissue for medical research. Paxton answered by telling Zaffirini that, “We’re not going very broad, we’re going very focused, and so, we’re not looking at — we’re not looking outside of that purview.”
When pushed by Zaffirini again whether his investigation would just be into Planned Parenthood or into anyone in the state who provides abortions, Paxton replied, “Potentially.”
A source close to the investigation, who has seen the CMP tape in Paxton’s office, notes that there is no evidence of criminal wrongdoing based on the un-redacted footage seen there (which was cut into the fifth “sting” video released Aug. 4) — and that, to date, no further evidence has emerged to suggest any kind of criminal activity on the part of Planned Parenthood.
Investigation May Not Only Target Abortion, But Also Contraception
One source close to the investigation speculates that Paxton’s endgame may not only be to restrict abortion itself, but also to limit access to contraception, as a shut-down of Planned Parenthood in the state would not only end abortion, but also limit contraception coverage to many Texas women.
Texas already has some of the most restrictive abortion laws of any state, including a statewide 20-week abortion ban. In June of this year, the U.S. Fifth Circuit Court of Appeals upheld Texas’s HB2, the new state law that places a series of regulations on abortion clinics and abortion providers. It could reduce the number of abortion clinics in Texas from 40 to between seven and 10, requiring physicians performing abortion to have admitting privileges at a nearby hospital. Critics of the law see it as a direct attack on Roe v. Wade, placing an undue burden on those women who elect to have an abortion.
Related: 7 Serious Threats to Reproductive Rights in 2015
While a state senator himself, Paxton not only voted in favor of HB2, but also was the bill’s co-sponsor. In addition to voting for the measures that required a mandatory ultrasound prior to an abortion, Paxton also co-sponsored a 2011 measure, SB5, that increased abortion facility requirements and prohibited a physician from performing or attempting to perform an abortion if a fetus is determined to have reached a “probable post-fertilization age” of 20 weeks. (Medically, gestational age is calculated from the date of a woman’s last menstrual cycle — not from a presumed date of fertilization.)
The bill also placed medically unnecessary restrictions on medication abortion, the FDA-approved process by which a combination of oral medications are used to trigger miscarriage in early pregnancy.
The Guttmacher Institute reports that in 2011, 14 percent of pregnancies in Texas resulted in induced abortions, meaning 73,200 women received abortions in the state that year. In 2010, 298,000 Texas women had an unintended pregnancy, resulting in $2.9 billion in federal and state taxpayer costs.
In 2011, 93 percent of Texas counties had no abortion clinic and as of July 2015, a woman must receive state-directed counseling that includes information designed to discourage her from having an abortion and then wait 24 hours before the procedure is provided. She must also undergo an ultrasound before obtaining an abortion, during which the provider must show and describe the image to the woman. If the woman lives within 100 miles of an abortion clinic, she must have the ultrasound done at least 24 hours before the abortion.
Already, 900,000 of Texas’ 5.4 million women of reproductive age may live more than 150 miles from the nearest health center — centers that provide many preventative health services, such as contraception counseling, STD testing, and cancer screenings — in addition to abortion services.
Meanwhile, a report released in May of this year by the University of Texas found that 55 percent of Texas women reported at least one barrier to accessing reproductive health care services, including cancer screenings or family planning visits, between 2011 and 2014; 37 percent reported two or more barriers, while 25 percent reported three or more barriers. Barriers to care include the inability to pay for services, inability to find a place where the woman feels comfortable with the available healthcare providers, inability to get time off from school or work, lack of childcare, and lack of transportation.
Related: Unintended Pregnancies on the Rise Among 20-Somethings like Bristol Palin: Here’s Why
More than 70 percent of public funding for family planning services in Texas comes from Medicaid and Title X, according to the Guttmacher Institute. Planned Parenthood sees 43 percent of all patients in Texas who receive public funding for family planning, as it is both a Title X recipient and Medicaid provider.
Those Inside the Statehouse Ask to Investigate the Investigators
Late last week, Texas state Senator Sylvia Garcia sent a letter to Harris County District Attorney Devon Anderson to investigate CMP for potential wrongdoing and illegal activity in the group’s making of the recent series of undercover “sting” videos released targeting Planned Parenthood and fetal tissue donation programs. A recent video released by the CMP includes footage taken at Planned Parenthood Gulf Coast’s (PPGC) Houston office, in Harris County. The Harris County DA’s office has already, upon the request of Texas Lt. Governor Dan Patrick, begun an investigation into PPGC based on allegations made by the CMP about the practice.
Texas state Senator Sylvia Garcia speaks at a Planned Parenthood rally. (Photo: AP Photo/Tony Gutierrez)
In her letter, Garcia expresses to District Attorney Anderson her belief that in order to “ensure that the complete truth is discovered and that there is no public perception of bias,” such an investigation — like the one already underway at the California Attorney General’s office — of the CMP and its shell company, Biomax Procurement Services, needs to be conducted, including “an examination of the use of actors posing as Biomax representatives, the use of fraudulent identifications, and the means of securing the video without permission and in possible violation of confidentiality agreements.”
Paxton has been reluctant to commit to such an investigation of the CMP himself.
As previously reported by Yahoo Health, Paxton received the complete unedited CMP footage filmed at PPGC long before it was publicly released and has refused to comment on how and from whom he received the videotape. Furthermore, he has thus far refused to comply with Planned Parenthood Federation of America’s requests per Texas’ Public Information Act (PIA) to turn over the full version of the tapes for its own review.
When it was her turn to question Paxton at the July 29 committee hearing, Senator Garcia asked the attorney general how far back his investigation intended to look, given that Planned Parenthood has said it has not participated in fetal tissue donation programs since 2011.
“I just don’t want this to be a fishing expedition and just chasing after something that may not be there, since they’ve clearly already said that this is not happening in Texas and no national video has suggested that,” Garcia clarified.
Paxton tells Garcia that the statute of limitations will limit how far back his investigation can go — but when later asked by State Senator Charles Perry, a Republican, what the statute of limitations would be for this case, Paxton replied, “I actually do not remember.”
Related: Why Women Do (and Don’t) Choose Fetal Tissue Donation After Abortion
At the July 29 hearing, Garcia expressed her concerns to Paxton directly regarding his investigation — and whether, in the name of fairness, it would only be looking at Planned Parenthood clinics or also the Center for Medical Progress with regard to potential criminal activity. As she said during the hearing, it was CMP actors and representatives “who got false IDs, entered a premises, and made questions unbeknownst to the parties that are being videotaped. If any laws are broken, will you also be referring those to the local district attorneys, to the city attorneys? Will you handle those yourself? I mean, what will happen with other things that surface during your investigation?”
To this, Paxton replied, “Well, our focus has been on abortion providers. It is possible in this investigation that other issues will come up that either we take responsibility for or we refer to local Das.”
So Garcia asks again, “But would you make the referral, is the question?”
Paxton replies, “Potentially.”
Meanwhile, the Center for Medical Progress claims to have released on Aug. 6 the full, unedited footage shot at Planned Parenthood Gulf Coast; the video CMP released clocks in at five hours and 45 minutes. Two separate sources who viewed the unredacted version of the tape through the Attorney General’s office, however, both described having seen a video approximately eight hours in length. It remains unclear from whom and how Paxton received his copy of the CMP footage — and where the remaining two-plus hours of footage not included in the CMP’s “full” version have gone and why.
True Motivations: Investigating Fetal Tissue Donation, or Abortion Access?
Comments made by Schwertner and some of his fellow senators during the hearing also call into question the motivations of the actions currently underway in Texas targeting Planned Parenthood.
In her opening remarks to the committee, State Senator Donna Campbell, MD, a Republican, noted that if in the course of the Committee’s investigation, “there are any areas of the law … where there are loopholes that we can expose, that we need to close with legislation to help protect Texas women and their families, then we need to do so.” In her remarks, Campbell suggests that these potential loopholes extend past the current regulations regarding fetal tissue donation, and into abortion access.
Jose Rodriguez, Texas state Senator, at the July 29 hearing on Planned Parenthood. (Photo: AP Photo/Eric Gay)
State Senator Jose Rodriguez, a Democrat, quickly followed Campbell’s remarks by asking Chairman Schwertner, “It is my understanding that this hearing is not intended to be about abortion or the right to choose in general, am I correct in that?”
Rodriguez went on to question the purpose of the hearing given that, “If, in fact, they are not involved and haven’t been doing [fetal tissue donation] since 2011, then I want to have a sense of, what are the parameters of the hearing today?”
In his own opening remarks, Schwertner announced his intention “to examine the regulation and laws relating to fetal tissue donation practices, and determine what, if any, additional regulations or statutory protections regarding these practices are necessary.”
Planned Parenthood Excluded from the Conversation While Antiabortion Activists Serve As Legal Experts
A source close to the investigation tells Yahoo Health that, despite what was said under oath during the hearing, the medical directors of Texas’ Planned Parenthood clinics never received any calls or emails inviting them to give testimony at the hearing. Rather, letters were mailed out mid-week before the Monday morning hearing to ensure that the letters would not be received until Saturday — or the Monday of the hearing, in some cases — effectively ensuring that no one from Planned Parenthood would be present to speak in person to the committee.
Schwertner explains to Rodriguez that though Planned Parenthood submitted written testimony to be read at the hearing, since they were not there in person, this testimony will not be included in the official record of the hearing, a practice Rodriguez questions, noting that “we have hearings all the time where people send in their written testimony and it’s included as part of the record.”
Rodriguez is also quick to point out that neither the research institutions that received donated fetal tissue specimens from Planned Parenthood Gulf Coast nor any of the other “middleman” companies Planned Parenthood has contracted with to supply fetal tissue to researchers were asked to testify at the hearing.
And yet, representatives from four separate anti-choice activists groups were present as witnesses to give expert opinion on how other states regulate and legislate around fetal tissue donation programs. It remains unclear why Schwertner and Paxton did not rely on legal experts from their own state’s agencies for this counsel.
Related: The Female Face Behind the Senate’s Bill to Defund Planned Parenthood
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