Arizona abortion opponents may need to prepare for a return to the courts as state legislators propose a new bill that combines two measures previously found unconstitutional. SB 1069, which made it out of house committee Monday, would allow for more unannounced clinic inspections, possibly leading to clinic closures in the state, and is designed to cut off funding to Planned Parenthood affiliates.
Proposed by state Rep. John Kavanagh (R-Fountain Hills), SB 1069 would allow the state health department to conduct unannounced inspections of facilities that offer abortions, regardless of whether a complaint has been made against the facility. Current law allows unannounced inspections, but only with cause. A 2004 court ruling found that unprovoked, surprise inspections of abortion clinics are unconstitutional because they could violate a patient’s privacy.
Kavanagh likened the proposed clinic inspections to unprovoked, surprise inspections of fast food restaurants.
SB 1069 also erects new hurdles for providing Medicaid-funded abortions. The bill would forbid a health-care provider that offers any services paid for by Medicaid to later provide an abortion for that same person, even if the abortion is paid for entirely by the patient.
“The goal is to address abortion providers who benefit from establishing contact with [Arizona Health Care Cost Containment System (AHCCCS)] members,” Cathi Herrod, president of the Center for Arizona Policy, a conservative anti-choice lobbying group, told the Arizona Republic, referring to the state’s Medicaid implementation service. “If providing AHCCCS services, don’t also provide abortion services to those same patients.” The Center for Arizona Policy has spearheaded most of the state’s birth control and abortion restriction proposals, including the recent move to block Republican Gov. Jan Brewer’s plan to expand Medicaid to more low-income, uninsured residents.
The goal of the new restriction is to side-step a recent court ruling that found the state cannot outright forbid Planned Parenthood from receiving family planning funding. If implemented, it would force people seeking an abortion to find a different provider than the one they may have most recently visited.
It is highly unlike the bill would survive a court challenge, as there does not appear to be a precedent for forbidding people to purchase a legal, available medical service with their own money.
Still, if the state was inclined to try and enforce the restriction, it could potentially do so in two ways: It could refuse to reimburse a clinic for services that are covered by Medicaid, or it could strip a patient’s coverage after the fact. Of the two possibilities, it is that latter that could have the more unsettling implications. RH Reality Check’s senior legal analyst Jessica Mason Pieklo said the state could compare restricting Medicaid benefits for people who receive care from “forbidden” providers to restricting low-income housing vouchers for people who commit a crime.
“The loss of coverage would be akin to kicking someone off housing subsidies if their family member commits a crime, for example,” explained Mason Pieklo, speculating about ways conservative politicians could present a case to the courts. Although seeking an abortion isn’t a crime, not following rules of a government program could set a person up for retribution. “They could likely argue to the courts that the need to ensure protection of taxpayers who would object to abortion creates the opening for a reasonable restriction on that benefit, especially as Medicaid funding already cannot be used to pay for abortions [except in the cases of rape and incest],” she said.
SB 1069 is expected to be heard by the full house this week.