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Church State Issues

Gov. Brewer signs bill on abortion-clinic inspections

Apr 16, 2014

Arizona Republic

When you read this article you have to admit that Cathi Herrod and her Center for the Arizona Policy have been very successful in turning Arizona into a Christian theocracy police state.

While Cathi Herrod's name isn't in this article she and her Center for Arizona Policy are behind this bill which attempts to take away a woman's right to abortions.

Gov. Brewer signs bill on abortion-clinic inspections

Alia Beard Rau, The Republic | 6:28 p.m. MST April 15, 2014

House Bill 2284 eliminates the requirement that the Arizona Department of Health Services first get a warrant to enter an abortion clinic during regular business hours if there is reasonable cause to believe the clinic is in violation of licensing requirements.

The law also makes it a crime to help a minor get an abortion in violation of state parental-consent requirements.

The law goes into effect 90 days after the legislative session ends, which could be as early as this week.

Planned Parenthood and ACLU of Arizona have said they are still considering whether they will file a legal challenge of HB 2284, but they do believe it is unconstitutional.

Gov. Jan Brewer on Tuesday signed into law House Bill 2284, eliminating a requirement that the Arizona Department of Health Services first get a warrant to enter an abortion clinic during business hours if there is reasonable cause to believe the clinic is in violation of licensing requirements.

The law goes into effect 90 days after the legislative session ends, which could be as early as this week.

"It was brought to our attention that every health-care institution in the state is subject to unannounced inspections by DHS if they have reasonable cause to believe something is going on inside, except for abortion clinics," said Center for Arizona Policy legal counsel Josh Kredit, whose organization wrote the legislation. "We're almost saying we value the women that go into abortion clinics less than everyone else."

Currently, according to the ADHS, the state can conduct warrantless, unannounced inspections of many facilities it regulates, such as hospitals, dialysis centers, nursing homes and child-care centers. But due to a court ruling, abortion clinics are treated somewhat differently; the agency can conduct scheduled visits, but it must get a search warrant for any unannounced inspections — even in response to a complaint of wrongdoing.

Planned Parenthood and ACLU of Arizona have said they are still considering whether they will file a legal challenge of HB 2284, but they do believe it is unconstitutional.

Planned Parenthood of Arizona President Bryan Howard said the point of requiring a warrant is to protect patients.

"The federal court has recognized that women receiving abortion health care have a heightened expectation of privacy that would be put at risk under the best of circumstances," he said. "The bill creates circumstances for health care to be interrupted and patients to be harassed and certainly for their privacy to be violated in the absence of any demonstrated need."

After a woman bled to death at a Phoenix abortion clinic, the Legislature in 1999 passed a law establishing a licensing process for abortion clinics and allowing unannounced inspections. The 9th U.S. Circuit Court of Appeals in 2004 struck down parts of the law, including the inspections, saying it was too broad and would give the state unauthorized access to patient information.

In 2009, the two sides reached a settlement that gave the state more oversight of clinics but did not include unannounced inspections. Since then, the Legislature has passed dozens of additional regulations of abortion clinics, some of which have survived court challenges.

The state health department has sought only one warrant to gain access to an abortion clinic in the past five years. The inspection of the Planned Parenthood clinic in Glendale was conducted in February, four days before the legislative hearing on HB 2284.

Howard said the warrant was sought in response to an incident Planned Parenthood had self-reported to the state involving a patient who had complications during an abortion in early 2013. In order to protect the patient's confidentiality, he declined to provide additional details.

"They'd been sitting on the need for 10 months but then asserted in an affidavit submitted to the court that they needed immediate access to the health-care facility," Howard said. "Average Arizonans ought to harbor some serious concern about what at least appears to be the misuse of the public health system to justify legislation."

ADHS licensing officials reported six deficiencies that included employee files that didn't include proper documentation of employee qualifications; particular medical records that were not properly signed, dated and legible; a patient's chart that did not include required documentation of an ultrasound; and a patient's vital signs that were not properly monitored.

Howard said Planned Parenthood is disputing five of the six deficiencies and has requested a hearing. Staff has corrected the deficiency related to the unsigned and unclear record entries.

"On the majority of findings, we dispute that there are any violations at all," he said.

The Center for Arizona Policy's Kredit said the results of the inspection back up the argument for warrantless inspections.

"There were an number of patient-care issues," he said. "It is vital to be able to go in unannounced and check those things out."

He denied the timing of the inspection had anything to do with politics.

"It took DHS months to be able to coordinate with the Attorney General's Office and local law enforcement," Kredit said.

American Civil Liberties Union of Arizona Executive Director Alessandra Soler said the Center for Arizona Policy has a history of successfully pushing bills that end up costing taxpayer money to litigate.

"These are laws that were one after another an effort by CAP to impose their own religious and moral views on the women of Arizona," she said. "They are bad public policy, they're costly to litigate and to enforce, and ultimately they're unconstitutional."

The courts have recently ruled against three Center for Arizona Policy laws: a ban on most abortions after 20 weeks of pregnancy; a law restricting the state from reimbursing abortion clinics with Medicaid funds for non-abortion medical care; and regulations of medication abortions.

Attorney General's Office spokeswoman Stephanie Grisham said the majority of the state's cost in recent abortion lawsuits has been from attorneys fees awarded to the abortion organizations that successfully fought the laws.

For the 20-week law, the state will pay $194,200 in attorneys fees for the plaintiffs. Maricopa County will also pay an additional portion. In the Medicaid case, the state will pay $295,500 in legal fees for the plaintiffs.

Kredit said he believes HB 2284 will survive a court challenge, despite prior rulings on the issue.

"The court said to be able to have unannounced inspections, you have to have a closely-regulated industry," he said. "It is our position that abortions are now closely regulated."


The issue: Unannounced inspections and abortion clinics

Who said it: Debbie Lesko , State representative

by Isiah Kurz and Ginger Rough - April 15, 2014, 12:24 pm

What we're looking at

How the Arizona Department of Health Services conducts inspections at abortion clinics and other state health facilities.

The comment

"They (the ADHS) are not allowed to do unannounced inspections. That's the whole point of this bill. Every other health institution in the entire state, the entire state, whether it's a hospital, a nursing home, a woman's health clinic, whatever... the only exception is (an) abortion clinic."

The forum

A debate on House Bill 2284 on Feb. 27, 2014, at the Arizona Capitol.


Editor's note: The following Fact Check has been updated and expanded from the version that ran in The Arizona Republic on Sunday, April 13. It includes new language for clarity and additional detail that was cut for space from the print version. The rating has not changed.

Lesko, R-Peoria, is sponsor of HB 2284, which has been approved by lawmakers and is awaiting Gov. Jan Brewer's signature or veto.

The bill, also known as the Women's Health Inspection Act, changes state law by eliminating a provision that requires the Arizona Department of Health Services to obtain an administrative warrant before conducting an inspection at an abortion clinic licensed by the state. There are nine licensed abortion providers in Arizona.

The Arizona Department of Health Services routinely conducts two types of inspections for health facilities licensed by the state: routine, annual inspections and 'snap' inspections prompted by a priority complaint.

Current inspection rules for abortion clinics stem from a legal settlement between the Tucson Women's Clinic and former ADHS Director Cathy Eden.

The clinic sued the state agency in 1999 after Arizona passed a law requiring the agency to license and inspect abortion providers if they provided five or more first-trimester abortions in a month or if they provide any second- and third-trimester abortions. Hospitals were exempted.

In 2010, the parties settled by agreeing on requirements that included a 10-day notification period before routine annual inspections and the current state rule mandating the ADHS obtain a warrant before conducting an inspection, following a receipt of a complaint.

In addition to addressing the warrant issue, Lesko's bill also puts limits on common abortion-inducing drugs, creates new rules for doctors, makes it more difficult for minors to get abortions without parental consent and requires abortion clinics to report when an abortion leads to a live birth and the steps taken to save the child's life.

Supporters, like Lesko and the conservative advocacy group Center for Arizona Policy, say the legislation is needed to better protect women's health because, under current law, they are unable to respond quickly to a complaint.

One warrant was issued for an inspection at an abortion clinic in the past four years. The DHS has the discretion in such situations to notify the clinic of its intent to obtain a warrant or to simply conduct a surprise inspection once the warrant is in-hand.

Bryan Howard, President of Planned Parenthood Arizona, Inc., told AZ Fact Check that the February inspection was a surprise. "I want to be clear and completely forthright. The requirement for a warrant is completely unique. That is accurate. And the 2010 court order stipulating the requirement is accurate," Howard said. "But to say we are not subject to unannounced inspections is not accurate. We are...the one time this happened (in February), they showed up with warrant in hand, with a police officer at 8 a.m.

"We did not know they were coming until they were at the door."

ADHS also confirmed in the February case, that the inspection on the clinic in Glendale was a surprise.

However, there is nothing in either the Arizona Revised Statutes governing health inspections, nor in the state's administrative rules dealing with abortion clinics, that specifically states that abortion clinics are subject to surprise or unannounced inspections the way other health institutions licensed by the state are. In fact, the administrative rule is silent on the notification issue.

ADHS director Will Humble said the agency chose not to notify the facility that it was seeking the warrant. Nor did the agency notify the facility that it was coming to inspect the property once the warrant was obtained, he said.

Opponents question the legality of (Lesko's) bill, noting federal courts have ruled such inspections could violate women's privacy rights. They predict that if the legislation is signed by Brewer, it is likely to become the subject of a costly lawsuit.

Nine other states, including Texas, Alabama, Louisiana and Kentucky, have similar statutes, said Elizabeth Nash, state issues manager at the Guttmacher Institute, a Washington D.C.-based non-profit focused on women's sexual health issues. Those laws have not been challenged legally, but Nash said Arizona is a more likely locale for a lawsuit because it has historically been "out front and center in abortion cases."

Inspections include examining medical records and infection-control practices to ensure compliance with state licensing rules.

Other medical facilities licensed by the state, including doctor's offices (such as primary-care or obstetrics and gynecology practices)are subject to unannounced inspections, especially if the state receives a complaint alleging a health or safety violation.

During the past four years, the agency has done more than 10,000 unannounced inspections at other state-licensed health facilities, including skilled nursing facilities, hospitals, doctor's offices and surgery centers, spokeswoman Laura Oxley said.

Oxley said inspectors do not, as a practice, interrupt a patient procedure or consultation during an inspection.

"If we did receive repeated or multiple complaints about pain after a Pap smear or something like that, then yes, we might have to ask a patient's permission to be present during the procedure," Oxley said. "But that would be a truly extraordinary situation. And we would never walk in without permission."

Bottom line: The ADHS is not allowed to conduct unannounced inspections of abortion clinics in response to a complaint, unless it first obtains an administrative warrant. The agency must give 10 days notice before conducting a routine, annual inspection.


Bill text, House Bill 2284, Arizona Legislature.

Arizona Revised Statutes, Title 36-424

Arizona Administrative Code, R9-10-1503(B)(4)(a)

Interview, Arizona Department of Health Services, Laura Oxley, spokeswoman

Interview, Bryan Howard, President, Planned Parenthood of Arizona

Interview, Will Humble, director of Arizona Department of Health Services

"Tucson Women's Clinic v. Eden," Arizona Department of Health Services director's blog, May 11, 2010.

"House approves bill that allows for unannounced inspections of abortion clinics," East Valley Tribune, March 5, 2014.