PHOENIX -- Ignoring a threatened lawsuit, a House panel voted Monday to allow warrantless inspections of abortion clinics and restrict their ability to get Medicaid funds.
The 7-4 party-line vote by the Republican-dominated Appropriations Committee followed arguments by Cathi Herrod, president of the anti-abortion Center for Arizona Policy, that Arizona is permitted to intercede in both areas. Herrod said the first provision helps protect women; the second prevents Arizona taxpayers from indirectly subsidizing elective abortions.
But Bryan Howard, president of Planned Parenthood Arizona, pointed to a 2004 federal appeals court ruling which barred state inspectors from showing up, unannounced, at abortion facilities. He said the judges ruled that the "expectation of privacy is heightened' at abortion clinics "given the fact that the clinic provides a service grounded in a fundamental constitutional liberty.'
And Howard told lawmakers state health inspectors can show up unannounced -- but, under the terms of a settlement of that case, only after first proving to a judge that there is probable cause. SB 1069 would overturn that requirement for a warrant.
Rep. John Kavanagh, R-Fountain Hills, pointed out there is no warrant requirement for other state-licensed medical facilities. More to the point, he said health inspectors need no warrant to check out the conditions in the food preparation areas of the local McDonald's restaurant, an operation Kavanagh said is far less dangerous to public safety.
"An inspector can mosey in any time, unannounced, to protect the public,' he said.
But House Minority Leader Chad Campbell, D-Phoenix, called that comparison "offensive.'
"Getting a fast-food dinner is not a constitutional right,' he said.
But the future of the measure remains in doubt.
Matthew Benson, press aide to Gov. Jan Brewer, said his boss has a "30-year track record' of supporting abortion limits.
"That said, she's not going to want take any action that jeopardizes the larger Medicaid proposal that she's put forward,' he added. And the governor's desire for Medicaid expansion could prove crucial to the future of this measure, set for vote by the full House today (eds: tuesday).
Campbell said Democrats have linked the issues of abortion and Medicaid.
More to the point, he said if the abortion bill is approved, Democrats may withhold their support from the Medicaid bill. And that would deny it the 31 votes it needs for House approval.
There's also the question of whether the other half of SB 1069, a new bid by lawmakers to limit the ability of Planned Parenthood to get Medicaid funding, would interfere with Brewer's plans to expand that program. (See related Medicaid story.)
Herrod acknowledged the 2004 court ruling voiding the unannounced inspections of abortion clinics. But she said it went against the state because Arizona was not regulating abortion clinics at the time.
It is now, Herrod said. And she said that gives the state the right to inspect without first going to court.
Howard, however, said the case eventually was settled with a court-approved agreement that requires a warrant. And that agreement, he said, remains in effect.
Kavanagh said other medical facilities manage to survive quite well without the need for a warrant. Instead, they exist under rules which require only that the health director have "reasonable cause' to believe that licensing requirements are being violated.
"The purpose of the inspection thing is to protect women,' he said.
Rep. Stefanie Mach, D-Tucson, said that's not the case.
"I don't think this is about protecting women at all,' she said. "I think this is just another feeble attempt to undermine a woman's right to reproductive health care.'
But Rep. Justin Olson, R-Mesa, said there is reason to believe there are problems occurring in Arizona without the warrantless inspections.
He cited a hidden video taken at a Phoenix abortion clinic -- not operated by Planned Parenthood -- where a staffer appears to say that if an aborted infant is born alive there will be no effort to help it. That violates existing Arizona laws, which require aid to live-born children.
The other half of the legislation deals with Medicaid funding and abortions.
Federal and state law already bars public funding for elective abortions. Planned Parenthood, however, does provide family planning services to Medicaid patients.
Last year, state lawmakers approved a measure making it illegal for any organization, which also performs abortions from participating in Medicaid.
But U.S. District Judge Neil Wake voided that law, ruling that federal law gives Medicaid recipients the right to choose among all qualified providers "without government interference.' And he said lawmakers cannot decide Planned Parenthood is not a "qualified' provider just because it performs abortions outside the Medicaid program and without federal dollars.
That ruling is on appeal.
SB 1069 seeks to sidestep Wake with different language to bar any organization that gets Medicaid funds from directly or indirectly subsidizing abortions. That includes any administrative expenses, including rent, employee salaries, utilities and any overhead.
It also says Medicaid funds cannot be used to assist with or encourage an abortion. And it says if a woman is getting Medicaid-financed family planning services from Planned Parenthood, she cannot get an abortion from that organization, even if she pays for it herself.