Arizona Bill Opens Abortion Clinics to Surprise, Warrantless Searches

Arizona 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, it noted that while warrantless searches are
allowed in closely regulated industries, “the theory behind the
closely regulated industry exception is that persons engaging in
such industries, and persons present in those workplaces, 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, warrantless searches were unconstitutional
under the Fourth Amendment. 

But a federal appeals court has previously blocked similar
legislation. In 2004, it 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 clincis, 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 harrass 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.”

And to force more culture war outrage, of course.

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