Arizona Bill Opens Abortion Clinics to Surprise, Warrantless Searches

Steve Rhodes/FlickrSteve Rhodes/FlickrArizona legislators passed a bill Wednesday that allows for surprise, warrantless searches of abortion clinics by state health authorities. The bill, backed by the same folks that pushed Arizona's recent "religious freedom" measure, removes the need for Arizona's health department to obtain an administrative warrant from a judge before surprise inspections. 

In February, the bill's sponsor, state Rep. Debbie Lesko (R-Peoria), argued that there was no reason abortion clinics in Arizona shouldn't be subjected to the same scrutiny "that happen[s] at Burger King and McDonald's." It would also be the same (murkily constitutional) scrutiny applied to other Arizona medical facilities, which health officials don't need a warrant to search at random.

But a federal appeals court has previously blocked similar legislation. In 2004, 9th U.S. Circuit Court of Appeals noted that while warrantless searches are allowed in closely regulated industries, the theory behind that exception is that people engaging in or employed by such industries have a diminished expectation of privacy.

That theory clearly does not apply to abortion clinics, where the expectation of privacy is heightened, given the fact that the clinic provides a service grounded in a fundamental constitutional liberty, and that all provision of medical services in private physicians' offices carries with it a high expectation of privacy for both physician and patient."

Therefore, the judge concluded, warrantless searches were unconstitutional under the Fourth Amendment. 

Second time's the charm? Arizona Republicans are hoping so. Having already passed the House, Lesko's bill passed the state Senate 17-13 Wednesday and now goes on to Gov. Jan Brewer. If enacted, Arizona would become the 11th state that allows for warrantless surprise inspections of abortion clinics, according to the Guttmacher Institute, a sexual health nonprofit. Abortion-rights activists have said they'll challenge the measure in court if it does become law. 

Supporters of the legislation say it's not an anti-abortion measure, merely an effort to better protect "the lives of women and children." But in the absense of any evidence that unsafe abortion clinics are an issue in Arizona, that rings a little false. (The first warranted search of an abortion clinic in several years just recently took place, "in response to a low-priority report" filed nearly a year ago "about a complication that a patient experienced.")

It's also hard to see how the bill would restrict or complicate reproductive rights, so long as it's not abused. But as Sen. Olivia Cajero Bedford (D-Tucson) notes, it could easily be abused by ideologues to harass and interfere with abortion clinics. "This bill simply opens the door for abuse and does nothing to keep women safe," Bedford said during debate on the Senate floor. "In fact, it's just another harassment tool the supporters are pushing to force a lawsuit."

Well, and to force more culture war outrage, of course.

Brewer hasn't yet indicated whether she'll sign the law. 

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  • Brett L||

    Perhaps this will remind progressives why a government shouldn't have the power to harass anyone by regulatory burden?

  • Anonymous Coward||

    When will you learn that power is never a problem, and that any fault of government is due to not having the "right people" in charge?

    Look at how much better America is now that we have the "right people" in the White House. Just imagine all of that rightness throughout FedGov.

  • Calidissident||

    Don't you know that that abortion providers are the only sort of business that could ever be adversely affected by government regulation?

  • DEG||

    That's funny.

  • Paul.||

    First comment off the bat sums it up nicely. Brett L's comment is really the only one necessary in this thread.

  • Hugh Akston||

    I choose to take that personally.

  • Paul.||

    Trust me, I include my own comments in that.

  • plusafdotcom||

    Google "Cloward Piven", think about it for a minute, then consider that its use has become a Strategy and/or Tactic for both sides in the past decades.

    And it's basic policy for most government agencies!

  • Hugh Akston||

    Once we get this abortion thing settled, the out-of-control spending and military-industrial complex are the next things on the agenda, right?

  • RBS||

    They'll get to all that right after gay marriage, prayer in schools, bullying and childhood obesity.

  • ||

    I can't hear you over the KULTUR WAR, Hugh.

  • Swiss Servator, Alt-text FTW||

    Hey, its not like they passed a bill allowing warrantless searches of deep dish pizza places!

    /shitstirrer

  • Zeb||

    That was already allowed, as the article points out.

  • Auric Demonocles||

    So I agree with the conclusion that these type of warrant-less searches are unconstitutional. But the idea that this is because abortion clinics should be subjected to less scrutiny than other medical facilities let alone fast food places, is exactly backwards. They're ignoring an an enumerated right but deferring to a made up one.

  • Drake||

    Bingo.

  • SusanM||

    How is the right to not be subjected to unreasonable search and seizure being ignored?

  • Brett L||

    The same way the Health Inspector can search and seize any and all evidence of Code Violations as a condition of your license. Or the fact that most states make compliance with any and all sobriety tests a condition of getting a drivers license. Having claimed the power to regulate an activity, they then exempt themselves because doing X is a privilege and not a right. In this case, providing medical care that includes abortions.

  • SusanM||

    But isn't there a Doctor/Patient privilege here? That is to say a recognition that what happens between Doctor and patient is allowed a heightened level of privacy?

    I see what you're saying, though. Nevertheless, the idea that government can use (or abuse) code enforcement as a backdoor ban shouldn't be an alien idea around here.

  • Brett L||

    No. I don't think there is any heightened privacy expectation in assuring that doctors follow the guidelines laid out by the health and safety licensing board. Any more than your private information held by you employer should be safe from the tax man come to audit them on their compliance with tax codes.

  • SusanM||

    Okay.

  • Homple||

    "Nevertheless, the idea that government can use (or abuse) code enforcement as a backdoor ban shouldn't be an alien idea around here."

    That idea is often discussed here. But if onerous codes and regulations are actually intended to ban things, then governments must be planning to ban everything.

  • SusanM||

    Who says they aren't? ;)

  • Homple||

    I do wonder sometimes. More often lately.

  • Andrew S.||

    At this point in time I'm just happy when the courts reach the correct decision on 4th amendment matters, even if they use incorrect reasoning.

  • Dweebston||

    Except those niches end up being used to defend the law. Oh, sure, we don't raid abortion clinics without a warrant because there's a privacy issue, but your artisinal unpasteurized milk operation isn't exactly an abortion clinic, is it, Mr. S?

  • Caleb Turberville||

    I sorta see your point. Forget what libertarians think, I'm willing to bet that 8/10 Americans believe that medical facilities should be under strict regulatory scrutiny. You can't make exemptions for abortion providers in that case.

    Also, if you want government money to pay for your abortion, you automatically open the door for the state to search your premises.

  • Calidissident||

    That last paragraph is a pretty dangerous precedent to go by.

  • Caleb Turberville||

    Medicare can audit any physician's office if it feels that it is being "defrauded." This is based on the notion that if they pay for it, they get to see how their money is being spent.

    I don't like state intrusion into medicine, but you open the door pretty wide when you expect the state to pay for your medicine.

  • Calidissident||

    My point was that this could extend far beyond medicine.

  • Paul.||

    I think that CT's point is that it already does.

  • Calidissident||

    I agree with that, but a) I think it could still go even further b) That doesn't make it acceptable. How many people in this country aren't directly or indirectly subsidized by the government in some way?

  • Caleb Turberville||

    No one is asking the government to pay for their Big Mac, yet the state still intrudes onto McDonald's property.

  • Calidissident||

    Then how was your point even relevant? And I'm not even just talking about businesses. That logic justifies searching private residences for the exact same reason.

  • Hydra||

    No it isn't. If a private insurer demanded the right to inspect the premises of any physician they paid claims to, none of us would object.

    The problem is that so much of our economy is filtered through govt coffers.

  • Calidissident||

    "If a private insurer demanded the right to inspect the premises of any physician they paid claims to, none of us would object.

    The problem is that so much of our economy is filtered through govt coffers."

    "Other than that, how was the play Mrs. Lincoln?"

  • Ted S.||

    Private insurers can't back up their demands with force.

  • Homple||

    "Private insurers can't back up their demands with force."

    Having your malpractice insurance pulled isn't force but it might as well be.

  • Dweebston||

    You know what sounds like safety? Issuing bureaucrats carte blanche to stroll around otherwise secure premises, badgering staff and disrupting routines.

    And that's assuming these unwarranted investigations aren't conducted in tandem with police, which would make the whole idea of raiding clinics for safety laughably backward.

  • Homple||

    "Issuing bureaucrats carte blanche to stroll around otherwise secure premises, badgering staff and disrupting routines."

    This goes on in every other business. Ever hear of OSHA, MSHA, EPA, Coast Guard, ICE ...?

    What's so special about abortion clinics that they deserve special exemptions?

  • Calidissident||

    What makes you think Dweebston is a fan of those agencies?

  • Homple||

    I don't know or care about his opinion. I don't see any reason that an abortion clinic should get special treatment given to no other medical facility, restaurant, dairy, iron mine, or whatever.

  • Loki||

    What's so special about abortion clinics that they deserve special exemptions?

    Nothing. The problem is that the prog-tards are going to get their panties in a bunch over abortion clinics (because KULTUR WARZ) while ignoring, and in many cases cheerleading, the intrusion of all those other bureacrats you mention into other businesses. If I didn't know any better I'd think that abortion rights are the only rights the prog-tards care about...

  • Dweebston||

    It's not about the warrantless raids, or exemptions for abortion clinics, it's the supposed rationale I object to.

    Though, as Cali alludes to below, I'm not in favor of warrantless raids for Gibson Guitars or organic produce growers, either.

  • R C Dean||

    the idea that this is because abortion clinics should be subjected to less scrutiny than other medical facilities let alone fast food places, is exactly backwards.

    Bingo. These are totally routine "administrative" inspections, to which most businesses in this country are subject. Nobody is singling out abortion clinics for specially disfavored treatment, here. Quite the opposite, in fact.

    The 9th Circuit opinion is just nuts, as can easily be seen with a little substitution:

    That theory clearly does not apply to abortion clinics hospitals, where the expectation of privacy is heightened, given the fact that the clinic provides a service grounded in a fundamental constitutional liberty, and that all provision of medical services in private physicians' offices hospitals carries with it a high expectation of privacy for both physician and patient."

    And, I must point out, the notion that patient privacy rights exist to protect the physician is bizarre.

  • Hydra||

    "Fundamental constitutional liberty?" That's gilding the lily a bit, isn't it?

    Whatever one thinks of abortion, the idea that it's a more protected activity than eating a hamburger or getting your teeth cleaned is ridiculous.

  • Zeb||

    Well, that is what current case law says. Given the recent decisions on Obama care, the court does seem to believe that you can be fined (OK, "taxed") for failing to brush your teeth.

  • Homple||

    Abortion has a special place in the hearts of all doubleplusgoodthinkers so abortion clinics must be exempted from the nanny state rules all other businesses must comply with.

    At my workplace back in the 1970s there was a feminist who kept saying that "if men could get pregnant, abortion would be a sacrament".

    Well, they still can't, but it is.

  • Paul.||

    "if men could get pregnant, abortion would be a sacrament".

    You know, I'm for a woman's right to have an abortion, but I always thought that was an uninentionally funny meme among progressives.

    "If men could get pregnant, they'd want to terminate that pregnancy too!"

  • Caleb Turberville||

    For every pro-life male I know, there's also at least one pro-life female.

    I'm pro-choice, but this meme is simply a silencing tactic:

    "You're male; therefore, you can't have an opinion about abortion."

  • Paul.||

    Yeah, it actually goes further than that: If you're male, you can't have an opinion about childbearing, period.

    Fun fact: I was once mildly happy when I was telling a female co-worker about an ear-infection I had, and how I had broken bones, had shrapnel lodged in my ass, but nothing hurt like that damned ear infection. She responded: I had one that was really bad, too. I had four children, and that ear infection was worse than giving birth.

  • Zeb||

    Then there are kidney stones, which many women also agree are worse than giving birth. And I can only imagine that they are worse for men than women given the length of urethra they must pass through.

  • Loki||

    this meme is simply a silencing tactic:

    "You're male; therefore, you can't have an opinion about abortion."

    Yup. Silencing tactics are their stock in trade, especially when it comes to kulture war shit.

    "You're opinion on race issues doesn't matter because you're white."

    "You're opinion on gay rights doesn't matter because you're straight."

    "You're opinion on _______ doesn't matter because you're _______."

  • Notorious G.K.C.||

    "You're male; therefore, you can't have an opinion about abortion."

    I'll shut up bout it once Obama, Shumer, Biden, etc. do.

  • Paul.||

    Hey RC, JCAHO just showed up on our doorstep, this morning, for reals. Hope they don't see all those boxes in the entryway of the IT room.

  • R C Dean||

    Ooooh, Paul. You got to get up to date. They aren't "JCAHO" any more, they are The Joint Commission, "TJC".

    Don't get that wrong in their hearing, or you risk getting an extra special "tracer", if you know what I mean.

  • paranoid android||

    The Joint Commission, "TJC".

    Good name for a band.

  • Paul.||

    Luckily for me, sitting at the hearings is above my pay grade.

  • 110 Lean||

    Arizona Bill Opens Abortion Clinics restaurants to Surprise, Warrantless Searches

    Jolly joker.

  • Dances-with-Trolls||

    Can't you people see? The state needs the power to execute warrantless searches!

    For the er.. children.

  • kinnath||

    You don't need to make something illegal when you can simply regulate it out of existence.

  • Brett L||

    Right, but not things Progressives hold sacred. Only things the opponents of Progressives care about.

  • kinnath||

    Progressives have been trying to regulate guns, tobacco, and sugary drinks out of existence. So they love the tactic as well.

  • Brett L||

    We're saying the same thing. One troupe of monkeys used to have a stick that they would use to beat another troupe of monkeys with. Now the second troupe is wielding the stick, and the first troupe are howling in outrage. Meanwhile, those of us who aren't monkeys think that the solution would be to just remove the stick so they do less collateral damage in their little troupe wars.

  • Warren's Strapon||

    In February, the bill's sponsor, state Rep. Debbie Lesko (R-Peoria), argued that there was no reason abortion clinics in Arizona shouldn't be subjected to the same scrutiny "that happen[s] at Burger King and McDonald's."

    Enlisting women into the War On Women? Well played, GOP.

  • Ted S.||

    She's not a real woman.

  • 110 Lean||

    ^^THIS^^ She's an Auntie Tom.

  • Loki||

    It would also be the same (murkily constitutional) scrutiny applied to other Arizona medical facilities, which health officials don't need a warrant to search at random.
    ...
    ...all provision of medical services in private physicians' offices carries with it a high expectation of privacy for both physician and patient."

    So, why is it that AZ can, apparently, perform surprise inspections of other kinds of medical facilities, when the plain language of the Appeals court ruling would seem to rule those out as well? Oh yeah, I forgot, because abortion is the only "right" that matters. So state bureaucrats can show up and nose around doctors' offices all they want, so long as that doctor doesn't perform abortions, and the proggies are perfectly OK with that. But threaten to do the same to abortion clinics and it's "OMGZ PRIVACY!1!!"

    FWIW, IMO they shouldn't be able to perform these bullshit suprise inspections at any medical offices, per the Appeals court ruling.

  • Loki||

    FWIW, IMO they shouldn't be able to perform these bullshit suprise inspections at any medical offices

    Or any other business. Forgot to add that. Health dept. wants to inspect a restaurant? Get a fucking warrant.

  • paranoid android||

    Obviously, as a libertarian, I want none of these businesses to have to deal with any of this bullshit, but on this particular piece of legislation I'm ambivalent. The pro-lifers in the legislature are obviously acting in bad faith, doing the tired insincere song and dance about the need to protect women's health when their transparent objective is to make abortions more difficult to procure.

    On the other hand, this:

    That theory clearly does not apply to abortion clinics, where the expectation of privacy is heightened, given the fact that the clinic provides a service grounded in a fundamental constitutional liberty, and that all provision of medical services in private physicians' offices carries with it a high expectation of privacy for both physician and patient."

    Is total bullshit. If abortion clinics provide a "service grounded in a fundamental constitutional liberty" how can you argue that every other doctor and clinic in the country does not do the same? There's a blatant and arbitrary double standard in the law which cannot be justified. Their plan for correcting it is obviously the wrong one, since the legislature would rather curtail the freedoms of the abortion clinics than expand the freedoms of everyone else, but I can't really take a position on an anti-liberty fix to an already problematic situation.

    And my position above is in no way influenced by my stance on the morality of abortion, where I'm also fairly ambivalent.

  • Homple||

    "The pro-lifers in the legislature are obviously acting in bad faith, doing the tired insincere song and dance about the need to protect women's health when their transparent objective is to make abortions more difficult to procure."

    So are the codes and regulations enforced by governments on everything else transparently enacted in bad faith only to make everything else hard to obtain?

  • Loki||

    So are the codes and regulations enforced by governments on everything else transparently enacted in bad faith only to make everything else hard to obtain?

    Short answer: yes.

    Government bureacrats and legislators hate the idea of people conducting business without first asking permission and taking orders. A fact that they always* disguise with bullshit about "public safety" or "for the children" or whatever BS they claim as their stated intention (which, as we all know, is all that really matters, natch).

    *There are probably some who are genuinely stupid enough to believe their own hype and think they really are acting for the greater good, but it really doesn't matter if they're just stupid or actively evil when the end result is the same.

  • Zeb||

    Some probably are. But less transparently so than most abortion regulations.

  • Homple||

    So health regulations are mostly ok, but applying health regulations in abortion clinics can only be done in bad faith?

  • Michael S. Langston||

    Not just that - but I call BS on the privacy idea completely. I mean really, how much privacy is risked by simply seeing someone at the office while they inspect?

    I'm pretty sure they can inspect most everything without needing patient names and addresses and photos...

    Though note - like others here... SLD: Businesses are private properties with owners and therefore a warrant should be required in all searches.

  • Brett L||

    I'm sure that the regulatory codes that prevent the building of new coal or nuclear plants are totally made in good faith.

  • Calidissident||

    I don't know why you guys seem to think that he would support those regulations or thinks that they're made in good faith. Nothing in his post would indicate that.

  • Homple||

    I don't suppose he whether he would or would not support those other regulations. My question is, on what logical grounds does an abortion clinic get a special exemption from the rules and regulations imposed on all other medical facilities?

    And I want a better answer than "becuz jezus freeks".

  • Calidissident||

    I don't think there is a logical ground. I don't think anyone here, even the biggest pro-choicer, thinks there is. Go to HuffPo if you want an explanation, although I'd caution against that if you want to maintain full brain function.

  • Homple||

    I read something at HuffPo once and had to declare the equivalent price of a frontal lobotomy on my tax form. I can't afford to do that again.

  • Elizabeth Nolan Brown||

    "...the legislature would rather curtail the freedoms of the abortion clinics than expand the freedoms of everyone else, but I can't really take a position on an anti-liberty fix to an already problematic situation."

    But that's why this could be a good leaping off point to talk about the problems with warrantless searches of doctors offices/businesses to begin with. A lot of commenters have whined that of course progressives will care about it in this instance, since it involves abortion ... but perhaps that's a good thing. If people object to willy nilly searches of abortion clinics, it may make them think about why they don't object in other instances.

  • Mickey Rat||

    That would depend on the progressives being hammered on abortion clinics having more protections under the law than any other kind of clinic, and the rationale for that. The headline here suggests that abortion clinics are being singled out for inspections rather than being brought in line with other clinics. If the progs can argue on that distorted version of reality, then they will.

  • paranoid android||

    True! I suppose part of the problem is a kind of unwillingness by a lot of people on "our side" to take these arguments to conservatives or progressives on the assumption that they are already predisposed to disregard everything libertarians say. In many cases, that's probably accurate.

    But It's easy to forget that there's no a priori reason why people who are pro-choice should be on board with wealth redistribution and an activist regulatory state and all the other items on the progressive wish list, and that there are a lot of people on the political margins who we can make an effort to turn into potential allies in those situations where both sides of the aisle are being hypocritical, like we have here. And I think your reporting here is a valuable contribution to that effort, Ms. Brown.

  • Notorious G.K.C.||

    "If people object to willy nilly searches of abortion clinics, it may make them think about why they don't object in other instances."

    There is a difference between the libertarian choicers, who see their position as part of a tapestry of anti-statist positions, and the progressive choicers, who see the issue in the frame of righteous defenders of women's rights versus patriarchal oppression.

    To the latter group, "reproductive rights" aren't a matter of defending against the overweening state, but of actively promoting Justice and Fairness for Women, just like the campaign for mandatory birth control as an employee benefit.

    The issue isn't limiting the state, but replacing the male chauvinist pig state with a compassionate feminist state.

    To such progressives, saying that the state cannot reliably be trusted with power because it might restrict abortion is incoherent, like saying police can't be trusted to arrest rapists because they might use that power to

  • Notorious G.K.C.||

    arrest rape victims.

  • lap83||

    "The pro-lifers in the legislature are obviously acting in bad faith"

    Would you still use that term if you thought abortion was morally wrong?

    "The Nazi guard who helped the Jews escape was acting in bad faith"

    I'm guessing no.

  • paranoid android||

    That analogy is absolutely insane and I'm not going to dignify that with a response.

  • Notorious G.K.C.||

    "The pro-lifers in the legislature are obviously acting in bad faith, doing the tired insincere song and dance about the need to protect women's health when their transparent objective is to make abortions more difficult to procure."

    It's not the prolife side which has to choose between protecting women and protecting children. Prolifers believe abortion harms both.

    The health inspections aren't to check on the welfare of the unborn children, but to make sure the abortions are safe for women. If an abortion is unsafe for *both,* why is it being performed, again?

  • paranoid android||

    The health inspections aren't to check on the welfare of the unborn children, but to make sure the abortions are safe for women.

    And, as ENB pointed out in the article, unless you have reliable evidence that abortion clinics in Arizona are unsafe for women, there is very little reason to believe that these lawmakers are being sincere when they say that is their motivation.

  • Notorious G.K.C.||

    They're not adding new regulations to the abortion clinics, simply saying these regulations are to be enforced with the same kinds of inspections as apply to other businesses.

    What's insincere about abolishing special privileges for abortion clinics?

  • OldMexican||

    But in the absense [sic] of any evidence that unsafe abortion clinics are an issue in Arizona, that rings a little false.


    Really? Because by definition, abortion clinics are already pretty unsafe places - for human fetuses.

  • OldMexican||

    It's also hard to see how the bill would restrict or complicate reproductive rights[...]


    Don't you just love how Beltwarians use the same creepy euphemisms as the anti-life proggies? Reproductive rights. Sounds so aseptic.

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