By Andy Brack, editor and publisher | To say that recent actions by the state Department of Health and Environmental Control on proposed changes to abortion regulations are “troublesome” may be the understatement of the year.
What should happen, based on its errors at best or bureaucratic incompetence at worst, is the massive agency should be split into two — health and environment — to reduce its power and make sure it is responsive to South Carolina’s citizens. But I’m getting ahead of myself.
Back in late September, the agency published proposed draft language to make regulatory changes to the state’s standards for licensing abortion clinics. The draft changes remain open for public comment until Oct. 24. After that, the DHEC Health Licensing staff is to review the comments and make changes before submitting to the DHEC board for review and a public hearing in December.
That’s the normal process for updating regulations — which then go to the General Assembly for consideration. Regulatory updates are often passed as a matter of routine.
But these proposals about abortion have gone off the rails. Why? Because DHEC is looking a little squirrelly about how the “update” has been handled. The proposed changes were published in the normal bureaucratic manner, but a website link to the regulation is broken. When one finds the regulation, it’s not just a few minor word changes, but an 81-page document filled with new language, provisions and requirements on clinics that critics now say are attempts to erect barriers for women who want legal abortions.
- (update: Click here to send comments to DHEC on the proposed regulatory changes.)
Just look at a few of the suggested regulatory changes.
First, the proposal calls for a married woman to get her husband’s consent to get an abortion, something that is, according to Planned Parenthood, “not only sexist and demeaning, but blatantly unconstitutional under Planned Parenthood v. Casey.”
Oops, 
DHEC admitted when caught. That’s a staffer error, the agency said and the provision now isn’t really under consideration: “The proposed change regarding including a record of the husband’s consent in the medical file was included in error, as consent is only required during the third trimester by state law.” (Note: State law doesn’t allow abortions in the third trimester.)
Second, the proposal calls for a requirement for women getting abortions to be tested for sexually-transmitted diseases. Again, oops: Staffer error; not under consideration now. That “was supposed to be carried forward as a continued recommendation not a requirement.”
Third, the draft regulation would require doctors performing abortions to have admitting privileges at hospitals, which the U.S. Supreme Court struck down in a Texas case as unconstitutional because such a requirement was seen as not providing a medical benefit to justify the burden it caused.
Other questionable regulatory changes that look more legislative than executive include requiring board certification of doctors performing abortions and stricter surgical facility requirements for clinics, also found unconstitutional by the Supreme Court. DHEC did not answer questions about its proposals on admitting privileges, certification or facility requirements.
You’d think an agency that is crafting regulations on something as sensitive as abortion would know what’s constitutional and what’s not. But the pattern that emerges throughout the 81 pages is of an executive agency that is trying to legislate, not merely regulate. It seems to be operating under the political rubric of doing what it wants to with the understanding that if caught with its pants down, it can ask for forgiveness.
And that goes to the heart of this problem at DHEC. The agency seems to have been co-opted into making significant changes to how abortions are done in South Carolina under the cover of stealth, hoping people wouldn’t figure it out. If it were not for disclosures by activists on the Internet this week, who knows whether these “errors” would ever have been admitted?
Last year, surprise inspections by DHEC that temporarily shuttered some clinics were seen as bald, political moves after no major problems were found. The agency’s latest involvement with the policy of abortion seems to be same song, different day.
Lawmakers should investigate the policy culture at DHEC and, in our view, split the agency to reduce its power. It’s time to say the heck with DHEC.
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We Can Do Better, South Carolina!