PHOENIX - Ignoring a threatened lawsuit, a House panel voted Monday to allow warrantless inspections of abortion clinics and to 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 that barred state inspectors from showing up, unannounced, at abortion facilities. He said the judges ruled the "expectation of privacy is heightened" at abortion clinics "given the fact that the clinic provides a service grounded in a fundamental constitutional liberty."
Howard reminded lawmakers that state health inspectors can show up unannounced - but, under the terms of a settlement of the 2004 case, only after first proving to a judge that there is probable cause. SB 1069 would overturn the warrant requirement.
Rep. John Kavanagh, R-Fountain Hills, pointed out there is no warrant requirement for other state-licensed medical facilities, and that 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.
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 to take any action that jeopardizes the larger Medicaid proposal that she's put forward," he said. And the governor's desire for Medicaid expansion could prove crucial to the future of this measure, set for a vote by the full House today.
Campbell said Democrats have linked the issues of abortion and Medicaid. 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 on Page A2.)
Herrod acknowledged the 2004 court ruling voiding the unannounced inspections of abortion clinics, but said it went against the state because Arizona was not regulating abortion clinics at the time. It is now, Herrod said, which gives the state the right to inspect without first going to court.
But Howard said the case eventually was settled with a court-approved agreement requiring a warrant, which remains in effect.
Kavanagh said changing the inspection rules is justified because it is being done "to protect women."
But Rep. Stefanie Mach, D-Tucson, said, "I don't think this is about protecting women at all. I think this is just another feeble attempt to undermine a woman's right to reproductive health care."
Rep. Justin Olson, R-Mesa, said there is reason to believe there are problems occurring in Arizona without the warrantless inspections.
The other half of the legislation deals with Medicaid funding and abortions.
Federal and state laws already bar public funding for elective abortions. But Planned Parenthood also provides family-planning services to Medicaid patients.
Last year, state lawmakers approved a measure making it illegal for any organization that 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."
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, including any administrative expenses, such as rent, employee salaries, utilities and any overhead.
It also says Medicaid funds cannot be used to assist with or encourage an abortion, and 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.