Courts Decline 'Safer' Abortion

SAN FRANCISCO — The U.S. Court of Appeals for the 9th Circuit has overturned the part of Arizona's abortion-clinic regulations known as “Lou Anne's Law.”

Pro-lifers like John Jakubczyk, president of the board of directors for Arizona Right To Life, are aghast at the decision.

“If the law of the land isn't going to protect children, at least it should protect women from being victimized,” he said.

The law, passed by the Arizona Legislature in 1999, was prompted by the April 17, 1998, death of 33-year-old Lou Anne Herron, mother of two other children, who bled to death after her uterus was punctured while having an abortion at the A-Z Women's Center in the Phoenix suburb of Glendale.

Herron begged for help, but was ignored by the clinic's physician, Dr. John Biskind, and administrator Carol Stuart-Schadoff, while a confused and inexperienced staff fumbled and hesitated for three hours before calling for an ambulance.

Biskind, 76, performed approximately 700 abortions a year in his two medical practices in Cleveland and Phoenix until he surrendered his medical license in August 1998.

He was repeatedly cited for negligence and incompetence prior to Herron's death and was implicated in the death of at least one other woman. Biskind was ultimately convicted of manslaughter in the Herron case and sentenced to five years in prison.

Stuart-Schadoff was convicted of negligent homicide and sentenced to four years of probation.

Mixed Judgment

Arizona's Department of Health Services reports 121,444 Arizona abortions during the past decade. Many were performed in unsafe conditions described by the appellate court as “atrociously substandard.”

Despite the danger, Arizona state law specifically denied the Department of Health Services authority to regulate any private physician's office or any clinic of a licensed health care provider unless patients were kept overnight or administered general anesthesia. In the wake of the Herron tragedy, the legislature sought to give the department the authority it needed to regulate clinics that performed five or more first-trimester abortions per month, or any clinic offering second-or third-trimester abortions.

But a Tucson federal judge struck down the regulations in 2002. The case was appealed to the 9th Circuit in San Francisco, and a three-judge panel issued a mixed ruling June 18. Judge Sidney R. Thomas, a Clinton appointee, wrote the opinion and noted that the legislature had ample reason for action, observing, “The scheme as a whole is a typical set of health and safety standards, unusual primarily because it singles out abortion clinics.

“Moreover, the legislative history indicates that at least one of the triggers for enacting the scheme was the death of a patient at an abortion clinic,” Thomas wrote.

However, he said, “Arizona itself does not have the power to prohibit any providers from performing abortions merely because it disapproves of abortion and would like to place obstacles in the way of women seeking abortions.” Neither does the state have the power to violate the federal Constitution, he said.

The court said aspects of Lou Anne's Law did both.

Inspection and access provisions of the law, permitting Health Services staff to go through clinics and medical records without warrant, were declared violations of the Fourth Amendment. Another provision, requiring clinics to “ensure that a patient is … treated with consideration, respect and full recognition of the patient's dignity and individuality,” was overturned because the appeals court ruled it to be vague and unenforceable, as well as a potential means for harassing or closing abortion clinics.

Meanwhile, Thomas rejected arguments from abortion businesses that any attempt to regulate them was a violation of the Constitution. Just because the law is only applicable to some abortion businesses did not make it a violation of the “equal protection” clause, nor does the requirement that physicians have admitting privileges at an Arizona hospital constitute an illegal delegation of state regulatory authority, he wrote.

Thomas also left open the question as to whether the law imposes an “undue burden” on providers, choosing instead to remand it back to the district court for further review. Since the state can show valid reason for the regulatory and reporting requirements, Thomas said it is now up to the lower court to decide if the requirements impose such a financial burden on the abortion businesses that they would be unable to function.

Delay Tactics

Until this final issue is resolved, the appeals court won't decide whether the state regulations must be entirely rewritten or just amended to fix the flawed aspects “since it is not yet clear if further portions of the scheme are unconstitutional.”

“That's typical of the manner in which the 9th Circuit typically applies (the Constitution) to anything to do with abortion,” Right to Life's Jakubczyk said. “The abortion industry has bought time, and that's what it's all about. If they can't overturn something, they delay and delay.”

Neither the Health Services Department nor the Diocese of Phoenix would comment on the decision. The New York-based Center for Reproductive Rights, which represents a group of abortion clinics and physicians in the case, in a prepared statement called the decision “a wise move.”

“This law in no way protects women's health, as Arizona claims,” said Bonnie Scott Jones, the center's attorney representing the plaintiffs, in the statement. Instead, the law “intrudes on a woman's private relationship with her doctor and interferes with a doctor's right to practice.”

The center opposes similar state laws, calling them “Targeted Regulations of Abortion Providers” or TRAPs. Meanwhile, Americans United for Life's senior litigation counsel Denise Burke, who was appointed a special deputy Maricopa County attorney to defend Lou Anne's Law, said in a prepared statement: “Right now, a dog has more protection in a veterinary clinic than a woman in an Arizona abortion clinic.”

“Other federal courts have consistently found that abortion clinic regulations, like those enacted in Arizona, are designed to protect women's health and do not interfere with their right to choose an abortion,” Burke said. “We are confident that the district court in Tucson will do the same.”

Philip Moore writes from Vail, Arizona.