PHOENIX — A bill in the Arizona Legislature to allow surprise inspections
of abortion clinics has been described by supporters as a vital tool for health
inspectors, who now must get a warrant to make unannounced searches of abortion
But the Arizona Department of Health Services has sought only one abortion
clinic search warrant in the past four years, and it happened just days before
the bill was heard in the House of Representatives last month. The warrant was
in response to a low-priority report filed nearly 11 months ago by Planned
Parenthood of Arizona, and critics believe the search was purely political to
help sell the proposal to lawmakers.
“It is very clear that it was not a situation which merited getting a
warrant,” Planned Parenthood of Arizona President Bryan Howard said. “It would
seem that the only reason that warrant was sought was that so that the
Department of Health could testify three days later about going through the
warrant process. So really it was a trumped-up situation.”
Health Services denied that there is any link between the legislation and the
search. Spokeswoman Laura Oxley said the agency originally planned to obtain a
warrant in November, but it was delayed, in part to ensure that a team of
inspectors was available to do the search.
“This is the first administrative search warrant we’ve served, and we
carefully worked through the process,” Oxley said. That included working with
the attorney general’s office and a local court, and coordinating with a local
police agency to serve the warrant.
The search warrant bill is being pushed by the Center for Arizona Policy, the
conservative group that wrote a now-vetoed religious freedom bill that angered
gays, civil rights proponents and the business community. President Cathi Herrod
said it is needed to protect women from rogue doctors like Kermit Gosnell, a
Philadelphia physician found guilty last year of murder in the deaths of three
babies prosecutors said were delivered alive and killed.
Rep. Debbie Lesko, R-Peoria, is sponsoring the legislation, which passed the
House last week and is set for its first Senate committee hearing this week. She
has said repeatedly that abortion clinics should be subject to the same
unannounced inspections without a warrant that all other medical facilities in
Arizona can face.
“This is not a pro-life versus pro-choice issue,” Lesko said. “This is about
the healthiness of a facility where a woman goes to get a procedure done.”
Democrats said the bill is a smoke screen and that the snap inspections would
lead to harassment of women seeking abortion services.
The health department has received just five complaints concerning abortion
clinic safety in the past three years, and the recent case at Planned Parenthood
was the only time a warrant was carried out. It was in response to a report
submitted by Planned Parenthood last year about a complication that a patient
Oxley said the report was considered a low priority but worthy of eventual
follow-up. But the warrant, issued Feb. 7 and executed Feb. 10, said “it was
imperative” that the agency be given unannounced and immediate access to
Planned Parenthood’s Glendale clinic for a search.
During the search, Health Services staff hauled off records of policies, two
patients, compliance audits and a corrective action plan dated May 8, 2013.
Oxley said the investigation remains open, and no citations or “notices of
deficiencies” have been issued.
The restrictions on abortion clinics are in place as part of a 2010 settlement
of a federal lawsuit brought after earlier state legislation. The 9th U.S.
Circuit Court of Appeals found snap inspections at the state’s abortion clinics
are illegal because women’s privacy rights are particularly at risk.
But the Center for Arizona Policy argued circumstances have changed and the
unannounced inspections could be upheld as constitutional. House Republicans who
voted 34-22 for the bill last week embraced that argument, with just one
Republican, Rep. Kate Brophy McGee, breaking ranks.
Planned Parenthood has warned that if passed, the law sets up another
lawsuit that the state must pay to defend.
Arizona abortion clinics normally are inspected every year as part of the
licensing process but can get a one-year extension if no problems are noted. If
complaints are received, regulators can seek to inspect earlier or ask a judge
to issue a warrant.
The Health Services employee who testified last month described a burdensome
process where the department had to call in the state attorney general’s office,
then go to a judge for the warrant.
But a former Maricopa County judge said warrants can be obtained extremely
quickly at all hours, either in person or by telephone. Retired Judge
Kenneth Fields also noted the U.S.
Supreme Court and other courts have made it clear that authorities can go in
without a warrant in cases when they have a reasonable that belief people’s
lives are in danger or that evidence might be destroyed.
“I’ve done this for 40 years, and I’m telling you, if there is a legitimate,
reasoned basis to get a search warrant, you can obtain it very quickly, as both
police officers, lawyers, judges know,” he said.
Oxley said because the department had never sought a warrant before, it didn’t
know exactly how the process worked, and the judge also was unfamiliar with the
administrative warrant process.