Ignoring a virtually certain lawsuit, the state House voted Thursday to let health officials conduct unannounced inspection at abortion clinics.
Rep. Debbie Lesko, R-Peoria, said abortion clinics are the only health facilities in the state where the Department of Health Services needs either permission or a warrant issued by an administrative law judge. She said there is no legitimate reason for that exception.
But Rep. Sally Gonzales, D-Tucson, said the additional requirement for a warrant or prior consent is necessary to protect patient privacy, and Rep. Eric Meyer, D-Paradise Valley, said that privacy is paramount because the clinics – and their patients – are the target of protests.
None of that, however, swayed supporters of HB 2284 who gave preliminary approval on a voice vote. A roll-call vote next week will send it to the Senate, and eventually the governor.
The final word, however, may belong to the courts.
Rep. Mark Cardenas, D-Phoenix, pointed out that a federal appeals court struck down a virtually identical provision of Arizona law in 2004. He predicted that if this measure is approved it will wind up back in court, with a similar result – but only after the state spends hundreds of thousands of dollars trying to defend the measure.
When that argument failed to sway supporters, Cardenas tried a different tactic. He offered an amendment saying that if the law is changed and the state loses, then the cost of the legal fight should come directly out of the budgets controlled by the House speaker and Senate president and not from other taxpayer dollars.
That drew a sharp response from Lesko.
“If there's concern about lawsuit costs, I suggest that Mr. Cardenas and his fellow members that oppose the bill talk to Planned Parenthood and tell them not to sue, save the taxpayers lots of money,” she said.
That's not likely to happen. Bryan Howard, president of Planned Parenthood Arizona, already is on record as saying he expects the issue to wind up back in court.
Central to the fight is whether the rules for inspecting abortion clinics should be different than other health facilities.
“Every single health institution in the entire state such as hospitals, nursing homes, assisted living centers, behavioral health centers ... with the only exception of abortion clinics is subject to unannounced inspections, not only during their annual inspections but if a complaint is filed,” Lesko said.
“Abortion clinics apparently must not care as much for the woman's health” as hospital operators, she said “because they're not subject to unannounced inspections like Burger King is.”
Rep. Victoria Steele, D-Tucson, said the measure is unnecessary. She said the legislation amounts to “scare tactics” by those who are opposed to abortions.
Potentially more significant, Steele said she fears there would be “unnecessary, unwarranted inspections” done by those who are abortion foes.
Rep. Bob Thorpe, R-Flagstaff, sought to turn the issue around. Thorpe said he has heard for years by those who support legal abortion that restrictions amount to a “war on women” by the Legislature.
“It seems like there's a war on women here,” he said. “What we're talking about is having a clean, safe environment for this particular clinic.”
Lesko, an abortion foe, insisted her legislation has nothing to do with the right a woman to choose to terminate her pregnancy.
State health officials said they did not ask lawmakers for the change in law and have taken no position on Lesko's legislation.
A spokeswoman said her agency had received five complaints against abortion clinics in the last three years. She said four of them were determined not to require further investigation; the necessary warrant was obtained in the fifth case which remains under investigation.
The legal issue – and the lawsuit to come if this gets signed into law – is somewhat more complex.
In a 2004 ruling, a three-judge panel of the Ninth U.S. Circuit Court of Appeals said provisions for state oversight of abortion clinics violate the rights of both patients and doctors. The court specifically said the law's authorization of “boundless, warrantless search of physicians’ offices” by state health officials violates the constitutional protections against unreasonable search and seizure.
Lesko conceded the point. But she argued the court ruled that way because Arizona was not regulating abortion clinics at that time. She said lawmakers have since adopted a comprehensive scheme for clinic regulations, eliminating the legal basis for that ruling.
But Howard has noted that the lawsuit eventually was settled with a court-approved agreement requiring a warrant, an agreement which remains in effect.