Abortion regulation scandal in Pennsylvania
Warren Throckmorton, PhDDr. Warren Throckmorton's Weblog
- 2011 Jan 20
Yesterday on my personal blog, I briefly posted a link to an article about Kermit Gosnell, a physician in Philadelphia who has been charged with the murder of a patient and seven babies. I knew I recognized the name but couldn't place it at the time. After looking a bit more, I found several articles on the Gosnell's background (e.g., this one from LifeNews).
Then I located the grand jury report on the case which included testimony of lawyers for the PA Dept of Health (beware - the report is not for the faint of heart). There is some confirmation of my suspicion that the reason abortion clinics had not been inspected related to policy. Here is a passage (pp. 161-164) where the report characterizes the testimony of attorneys for the DOH (italics).
It was clear to us after hearing these witnesses testify that the decisions not to inspect abortion clinics or to license them as ASFs were not based on any serious interpretation of statutes or legal research. These lawyers were simply twisting and reinterpreting the law to explain policy decisions that changed with administrations, even though the laws did not. Dutton admitted in her testimony that the decision not to inspect was a policy decision, not one grounded in the law:
Q: Does it surprise you to know that some of the reasons cited for the failure to go out and do these inspections is that they believed that they didn't have the legal authority to do so?
A: That would surprise me, yes. . . . To me, I would believe that they didn't go out to do them because some policy had been set in the department at some point in time in the past that we were not going to do regular inspections of abortion facilities.
Dutton's failure to recognize and treat abortion clinics as ASFs, and her silence as DOH shirked its duty to protect women and infants at abortion clinics, reflect a blatant refusal to enforce the law.
The DOH attorneys offered multiple explanations to attempt to justify why the department does not license abortion clinics in the same manner as any other ASF. None of their explanations comports with the law or with common sense.
Two of their "justifications" are barely worth comment. One lawyer told us that there is always "push-back" from doctors who do not want to be licensed as ASFs. Not only is this argument irrelevant to any legal analysis, it is unpersuasive. We learned that there are fewer than 30 abortion providers in the entire state. These doctors should not be able to exert that much push-back. Moreover, the legitimate abortion providers who testified before the Grand Jury told us that they already comply with standards as demanding as those for ASFs. Abortion rights advocates told us the same thing - that licensing abortion clinics as ASFs would not be burdensome because clinics that are members of NAF, or associated with Planned Parenthood, already comply with the highest standards of care.
A second reason proffered by DOH attorneys for not licensing abortion clinics - that abortion is "controversial" - is just insulting. Abortion is a legal medical procedure. Any controversy surrounding the issue should not affect how the law is enforced or whether the Department of Health protects the safety of women seeking health care.
The DOH lawyers offered up policy based reasons not to regulate abortion providers but the grand jury dismissed these excuses.
I am hoping an investigation of the DOH will now commence to discern who authorized the policy which illegally exempted abortion facilities from inspection. As the rest of the grand jury report makes clear abortion facilities are required to be inspected by state law regulating ambulatory surgical facilities (ASFs). However, apparently for decades, these facilities have not been treated as such and allowed to practice without oversight.