ABORTION REGULATIONS UPHELD BY COURT

Published November, 2002

Efforts to regulate the abortion industry have gained ground this past month as two major Arizona laws were upheld by the courts.

On September 30, the Arizona Abortion Clinic Regulations law survived challenge by pro-abortion groups in the U.S. District Court in Tucson.  Judge Raner Collins upheld the bulk of this law which requires all Arizona abortion clinics to follow basic regulatory rules covering sanitation, staff qualifications and training, medical protocol, record keeping, and emergency procedures.

Known as “LouAnne’s Law,” the law set forth regulations for abortion clinics as a response to the death of LouAnne Herron in 1998 as the result of a late-term abortion at the A-Z Women’s Center in Phoenix.  Dr. John Biskind was convicted of  manslaughter in 2001 for her death after a month-long trial which documented many practices considered substandard by medical experts.

Herron had undergone multiple ultrasounds which determined the age of her fetus to be as old as 26 weeks. Prosecutors presented evidence that Dr. Biskind coached his staff to manipulate the ultrasound probe to produce a fetal age under 24 weeks, the general Arizona legal limit for performing abortions.  When Herron’s records were turned over to the police, only one ultrasound of seven remained.  Although Dr. Biskind claimed it showed the fetal age at 23 weeks, expert witnesses declared it unreadable.

Trial evidence also revealed that Herron was attended by inexperienced medical assistants, several of whom were new to the clinic that week. Lacking supervision from either Dr. Biskind or a registered nurse, they were unable to respond to Herron’s heavy bleeding until it was too late.  Paramedics arrived within minutes of being called, but Herron was already dead.

Cathi Herrod, Director of Policy for the Center for Arizona Policy (CAP) recalls public reaction to the death of Herron,  “It shed light on the abortion industry.  It proved what pro-life leaders had long believed about the abortion clinic and about what went on in the abortion clinic.”

Legislators and pro-life forces quickly responded to the death of LouAnne Herron by drafting the Arizona Clinic Regulations Law in 1999, drawing on South Carolina law, Planned Parenthood abortion clinic protocol, and medical advice from the Physicians Resource Council.

The clinic regulations, amended by the 2000 legislature, were quickly challenged in court.  The Center for Reproductive Law and Public Policy of New York filed suit in U.S. District Court in Tucson against the state Department of Health Services.  They argued that regulations were unnecessary and were being used to put abortion clinics out of business.

Judge Collins, in the ruling issued, disagreed.  While striking several provisions, Collins determined that the bulk of the law does not “unduly burden” women and meets standards for constitutional equal protection.  Arizona abortion clinic regulations have survived this first legal challenge, but Herrod of CAP says, “I think it’s likely that this could still take several years of appeals before we finally get it enforced.”

In a separate court ruling filed October 9, The U.S. 9th Circuit Court of Appeals upheld the Arizona parental consent law in a 2-1 decision.  The Arizona Legislature passed the law in 2000 which requires a minor to obtain consent from one parent or a judge before undergoing an abortion.

Again, those active in the pro-life movement expect the decision to be appealed.  An Arizona Right to Life spokesperson says, “We anticipate that Planned Parenthood of Southern Arizona will exhaust every legal means to stop the law from going into effect.”

While the early pro-life movement began by defending the life of the unborn, these two laws and the court decisions affirming them have focused public attention on women.  Cathi Herrod says, “As a pro-life leader, we have to be as concerned about the life and health of the woman who walks in the abortion clinic as we are about her unborn child.”

And while court challengers argue that these laws are unduly restrictive, Herrod disagrees.  “In my view, the regulations don’t go far enough to protecting that the woman is given adequate counseling from the physician himself…that she’s adequately informed about her rights.  It’s a huge first step in doing what needs to be done to help the woman, but it doesn’t go far enough.”

As pro-life groups share their successes, they are learning to craft legislation that meets constitutional requirements.  For instance, Herrod says one of the legal models on informed consent laws, “talks about the woman being able to be in the room by herself with the physician.  I mean it goes to that level of detail to make sure that the woman has access to the physician and can get the counseling that she wants.”

Whether crafting new legislation or meeting future legal challenges, Arizona Right to Life speaks for many.  “Overall, the ruling[s] send a message to the abortion industry that it can no longer hide its unsafe profit-driven practices at the expense of women’s health.”

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