From: Citizen Magazine; July 2001
A Dirty Industry
"Regulating" the Abortion Industry
By Karla Dial
Colorado Springs, Colorado
It started in 1992, when two Charleston abortion-clinic workers went to the South Carolina Department of Health and Environmental Control with a horrific tale.
The doctor for whom they worked didn't just abort babies-he ground their tiny bodies in a kitchen garbage disposal, flushing what was left down the drain and into the public sewer system.
Because first-trimester abortion clinics weren't regulated in South Carolina, the state could only investigate possible violations of the Hazardous Waste Management Act. But when state Sen. Glenn F. McConnell, R-Charleston, saw a television station's three-part expos on the problem, he turned his outrage into action.
"There's more regulation now in a veterinarian's clinic than an abortion clinic," McConnell said in launching hearings into the matter. During those hearings before the General Assembly in 1994, women told what they saw while undergoing abortions: bloody sheets, bloody cots, dirty bathrooms- even a dog in the operating room. The bill that emerged from those hearings- proposing to regulate abortion clinics' sanitation, staff qualifications and disposal procedures-was signed into law in January 1995.
But that law has yet to be enforced. For the last six years, the abortion industry has fought regulation in court, claiming that imposing even minimal standards of care on clinics is unconstitutional and medically pointless.
The need for regulation doesn't just exist in South Carolina. To date, 16 states have some type of law on the books regulating abortion clinics; seven others have introduced legislation to do so this year. In at least two of those states-Arizona and Texas-regulations are still tied up in court.
But time is running out for South Carolina abortion clinics. Last August, the Fourth Circuit U.S. Court of Appeals ruled 2-1 that the state regulations "serve a valid state interest" of ensuring appropriate care for women and neither restrict a woman's right to abortion nor make it too expensive. Though the abortion industry appealed the decision to the U.S. Supreme Court, the justices turned it away in late February without comment, allowing the Fourth Circuit decision to stand. South Carolina's abortion clinics now have until July 1 to comply with the 27 pages of regulations handed down by the Department of Health and Environmental Control.
South Carolina provides a model for other states to follow-and the Supreme Court's decision provides hope for those attempting to regulate their local abortion clinics while running a gauntlet of legal challenges.
"The abortion industry, on this issue, keeps saying the regulations interfere with a woman's right to choose. That's just not the case," said Kevin Caiello, interim president of the Palmetto Family Council in South Carolina.
"[This Supreme Court decision] makes it clear that the regulations are not putting limits on abortion, they're not unconstitutional, and the arguments against them have not passed judicial muster. The abortion industry has really been getting a free ride for a long time, and I think this court decision says that's just not going to be tolerated."
Drawing the line
One would think the statewide attention drawn to the case of LouAnne Herron-who bled to death after Dr. John Biskind punctured her uterus in a Phoenix abortion clinic in 1998 (see "She didn't have to die," June 2001)- would have effected some kind of substantive change in Arizona. Though a law regulating Arizona abortion clinics was passed in 1999, the New York- based Center for Reproductive Law and Policy immediately sued to block it from taking effect. As a result, Arizona women are still receiving abortions in unlicensed, unregulated clinics-and state Sen. Sue Gerard, chair of the Senate Health Committee, doesn't see that changing any time soon.
"There are multiple reasons why it's being held up in court, but one of them is equal treatment under the law," Gerard said. "There's all kinds of health care taking place in doctors' offices without regulation, and that needs to be addressed as well. Problem is, we couldn't figure out how to do it. We don't want to make every pediatrician and ophthalmologist be licensed as a hospital. So that's the problem-where to draw the line."
But to Holly Gatling, executive director of the Columbia-based South Carolina Citizens for Life, that line is obvious.
"Our response to that is when there's a crying need within the family practice for these minimum standards, the Legislature can deal with that," she said. "The Fourth Circuit Court of Appeals says it's not a violation of the Constitution to regulate one type of clinic. What you can't do is regulate one facility and not the entire industry. It's all or none."
Skip Hulett, a former district judge and president of the Texas Justice Foundation in San Antonio, agreed.
"Every state has a legitimate interest in protecting women who undergo such a dangerous procedure as abortion. How often do we see a patient of a podiatrist who can no longer have children, who suffers emotionally for the rest of his life and needs blood transfusions? When you have an industry that depends so much on secrecy, I think there's a greater need to ensure the safety and health of the patients."
Hulett knows what he's talking about. The Texas Justice Foundation has represented women injured by abortionists since the state's licensing and regulation laws became tangled up in the judicial system in 1999.
Texas passed laws in 1998 requiring doctors' offices to be licensed as abortion clinics if more than 51 percent of their yearly business was dedicated to pregnancy termination-licenses that cost each of them a $2,500 application fee and force them to meet strict rules on equipment, credentialing and training of personnel while undergoing surprise inspections. Doctors caught running unlicensed facilities could be punished by a $4,000 fine and up to a year in jail.
But that "51 percent" clause provided a huge loophole abortionists shamelessly exploited, said Teresa Collett, a professor at South Texas College of Law in Houston. By performing a urinalysis on a pregnant woman her first visit, a blood test the second and an abortion on the third, abortionists could claim that only 33 percent of their business practice was dedicated to abortions and thus avoid licensure. So the Legislature instead set the limit at 300 abortions per year.
"That number, interestingly enough, was suggested by one of the Texas family-planning groups," Collett said. "The initial legislation proposed a smaller number-10 abortions per year [per office]. But the abortion providers complained that was far too low, that you could do that many and not even be an abortion provider. So the Texas Family Planning Association provided the 300 number, and the Legislature relied on their expertise. The New York City lawyers who flew in to challenge our law attempted to characterize it as nothing more than political compromise, when in fact it came from the providers themselves."
Around the circuit
The Center for Reproductive Law and Policy helped several Texas abortionists challenge the law in 1999, and the trial court blocked its enforcement. Three amendments-requiring abortionists to "enhance patient dignity, maintain and enhance the patient's self-esteem and provide quality of care which meets or exceeds the expectation of the patient"-also were enjoined.
On April 13, the Fifth Circuit U.S. Court of Appeals heard the case regarding the preliminary injunctions. While the three "self-esteem" amendments were struck down as too vague, the court found that the state does not violate the Constitution by licensing clinics performing more than 300 abortions per year and that states can regulate the training of abortion-clinic workers. The case has been returned to the lower court for a full trial, the date of which had not been set at presstime.
"I think it's very clear the Fifth Circuit is saying there's a legitimate state interest to protect the health and safety of Texas women, and this licensing requirement is rationally related to that interest," Hulett said. "It's constitutional. The trial court is going to have to follow that.
"If you look at the regulations, they're requiring people who do [abortions] to have written infection-control procedures, to have qualified staff, to be subject to annual on-site inspections by state inspectors. If they don't have anything to hide, they wouldn't be fighting these regulations."
Aborting for dollars
Running a sanitary, aboveboard business might not seem like such a hard thing to do. But in the case of abortion clinics, said Carol Everett, who once owned several in Texas, doctors stand to lose money by changing the way they do things-a lot of money.
Everett, founder of an Austin crisis pregnancy center called The Heidi Group, pocketed $25 for every abortion performed in her clinics in the late 1970s. During her last month as a clinic owner, in 1983, she cleared $13,625. And prices have gone up since then.
According to data provided by The Heidi Group, first-trimester abortions in the United States average about $300, of which the abortionist pockets $100. The goal is to perform 10 to 12 abortions per hour-a rate that will allow him to earn between $1,000 and $1,200 in the time it takes most people to take a lunch break. And for second- and third-trimester abortions, the fee is higher-an average $3,000, of which the abortionist keeps half. Though they take longer-he can only squeeze in three each hour-that's still $4,500 an hour.
"You put the woman on the bed, pad beneath her," Everett said. "You never change the hose [in the suction machine]. You don't wash your hands. You just run in, do the abortion, then literally run across the hall to do the next one. At the end of the day, the clinic pays the abortionist in cash, leaving it entirely up to him what he reports to the IRS."
After Texas' abortion-clinic regulations became law in 1998, the number of abortions performed in the state dropped 9 percent in 1999-the largest one- year drop in state history. It is unclear whether that drop is a result of the regulations or just consistent with the national trend of fewer abortions being performed that year; however, it is clear that while 83 abortion clinics were operating in Texas in 1998, there are currently only 52, according to the Heidi Group.
"We believe that when you start protecting the health of women, abortion clinics start going away," Everett said.
The final conflict
For South Carolina, Texas and any other state with abortion-clinic regulations, the toughest battles remain on the horizon-enforcing the law. To be truly effective, every agency in the state has to be committed to the law; this, too, is far from universally assured.
"Passing regulations is a great idea, but it's only important to the extent that you enforce them," said Mark Crutcher, founder of Life Dynamics, a group that brings malpractice suits against abortionists around the country. "We've seen a lot of cases in the past where states pass a bill, but the enforcement is left up to an agency that's very pro-abortion. So you never know what the impact of it is going to be until you know whether they're going to enforce it, or what the penalties for violation are.
"If it's a $200 fine, it was a complete waste of time to do it."
So what can pro-life citizens do to ensure that their state's laws are reasonably enforced?
Holly Gatling suggests they get on the phone.
"Politicians do respond to constituent calls," she said. "Call your state senator and representative and say you're interested in this. Contact your local crisis pregnancy centers, see what kind of information they have. Go to your pastor. Ask him to authorize a Respect Life committee in your church."
Carol Everett talked to everybody who'd listen-framing the issue in a context that couldn't be ignored as right-wing religious fanaticism.
"We talked about
the abortion problems in Texas," she said, "people not being licensed,
janitors doing abortions. We talked about protecting the health of women."
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