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Last-minute anti-abortion bill goes nowhere

Center for Arizona Policy President Cathi Herrod. (Photo by Ryan Cook/RJ Cook Photography)

A bill allowing health inspectors to carry out unannounced inspections of abortion clinics failed on June 13, but its supporters promised to revive it next year.

The strike-all measure, SB1069, was approved June 10 in the House Appropriations Committee in a 7-4 vote along party lines, but was held from floor debate the next day after Rep. Eric Meyer, D-Paradise Valley, offered an amendment that would have stripped the bill of all pro-life provisions and replaced them with a study committee. The bill was pulled again June 13 from the Committee of the Whole agenda.

Center for Arizona Policy President Cathi Herrod said there weren’t enough votes in the House to defeat Meyer’s amendment.

“We will be back next year,” Herrod said. “Women in Arizona deserve better from their legislators, pre-born children deserve better.”

Although Herrod and Gov. Jan Brewer locked horns in the last hours of the session on whether an abortion provision should be included in Medicaid expansion, leading the governor to publicly criticize the socially-conservative lobbying group, Herrod said she expects she and the governor will once again be working on pro-life issues next year.

“Governor Brewer is a pro-life champion,” Herrod said.

Bryan Howard, CEO and President of Planned Parenthood, said CAP’s strategy to introduce the measure late in the session may have backfired.

“(Lawmakers) are already exhausted,” Howard said. “I don’t think the energy was there to pursue this battle (than) if she had introduced legislation before the deadline like everybody else.”

Howard said he also expects Herrod to bring the measure back next year, but Planned Parenthood is going to stick by its analysis this year that the proposal was unnecessary and violated federal law and the U.S. Constitution.

And if the proposal makes it into law next year, then there will certainly be a legal challenge and both sides have already staked out their legal positions.

A legal fight is going to hinge on the question of whether abortion clinics in Arizona are a “closely regulated industry.”

The 9th U.S. Circuit Court of Appeals found in 2004 they aren’t, which is why inspectors from the Department of Health Services can intrude upon an abortion clinic only if a complaint has been lodged or upon getting an administrative search warrant.

The government can make surprise inspections of closely regulated industries.  The U.S. Supreme Court and 9th Circuit have determined that industries such as veterinary drug manufacturers, liquefied gas retailers, auto-salvage yards, firearms dealers and the liquor industry are considered closely regulated.

Herrod said Arizona abortion clinics are now closely regulated because they are subject to a set of rules  that weren’t in effect when the  9th Circuit ruling was written in 2004, and a rash of laws restricting abortion have been enacted in recent years.

The state eventually negotiated a court-approved settlement on the rules, which took effect in 2010.

Already decided

Bonnie Scott Jones, an attorney with the Center for Reproductive Rights who argued the 2004 case, Tucson Women’s Center v. Eden, said the bill clearly violates the 9th Circuit decision and is only seeking to re-challenge an issue that has already been decided.

“The negotiated settlement has worked just fine, on both sides, and there is no problem here,” Jones said.

She said that simply subjecting an industry to a rash of laws and regulations doesn’t make it a “closely regulated industry,” and the medical profession is not one.

The 9th Circuit, citing previous cases, wrote that a business is closely regulated is “essentially defined by the pervasiveness and regularity of the regulation, and the effect of such regulation upon an owner’s expectation of privacy.”

At the Appropriations Committee hearing, Howard read aloud a portion of the 9th Circuit ruling in which the court said there is a heightened expectation of privacy in a doctor’s office for the physician and patient.

“That line from the Circuit Court ruling will forever make this (SB1069) a violation of the Fourth Amendment,” Howard said.

The bill also had provisions that would prohibit the women getting Medicaid assistance from getting an abortion at the same clinic where she gets other services such as family planning or wellness checks, and prohibiting the use of Medicaid funds from directly or indirectly going towards abortions.

Unannounced inspections

But it was the unannounced inspection provisions that got most of the attention during the Appropriations Committee.

“I think it’s really critical to note abortion clinics are the only medical facilities in the state that require DHS (Department of Health Services) to have a warrant before they can do an unannounced inspection,” Herrod said. “Abortion clinics should be treated the same way, they’re obviously providing surgical, medical, services and they should be subject to the same type of regulatory oversight.”

Herrod said the provision was motivated by the recent murder conviction of Philadelphia physician Kermit Gosnell and an undercover video obtained by pro-life group Live Action in which a staffer at Family Planning Associates said a baby would not be saved if it survived a late-term abortion. The Department of Health Services found no violations on the video.

A 24-year-old woman filed suit May 10 against Family Planning Associates co-owner, Dr. Paul Isaacson, alleging he botched her abortion procedure in May 2011, and failed to properly inform her of the risks.

Isaacson, who is also the plaintiff in a lawsuit challenging Arizona’s ban on abortions after 20 weeks, declined comment.

Herrod said the lawsuit shows at a minimum a woman’s health is at stake if she walks into an abortion clinic.

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