NRL News

“Essentially, they have tied their own hands and now complain that they are powerless”

by | Mar 14, 2011

Editor’s note. Abortionist Kermit Gosnell is charged with eight counts of murder. “How Did This Go On So Long?” is one of the key sections in the Grand Jury’s 261-page report. Today’s except show the Grand Jury’s disbelief that relevant authorities could possibly believe that abortion clinics did not qualify as Ambulatory Surgical Facilities (ASF) and be regularly monitored. 


The state Department of Health inexplicably allows abortion clinics, alone, to go unmonitored.


The Grand Jury asked several DOH employees, attorneys as well as those charged with overseeing abortion facilities, why the department does not treat abortion clinics as ASFs when the language of the Health Care Facilities Acts is so clear. Their unsatisfactory answers left us bewildered.


The two attorneys closest to the issue – Senior Counsel Kenneth Brody, who advises the Division of Home Health, which currently oversees abortion clinics; and Senior Counsel James Steele, who advises the division that oversees ambulatory surgical facilities – both testified that they believe that abortion clinics such as Gosnell’s fit within the law’s definition of an ambulatory surgical facility. Their boss, Chief Counsel Christine Dutton, refused to acknowledge that the ASF definition would cover abortion clinics, but could not explain why it did not. She said she “would have to research that to determine if that were the case.”


Dutton, however, before becoming chief counsel, was assigned to advise the DOH division that licenses ambulatory surgical facilities. As such, she had to be very familiar with what constitutes an ambulatory surgical facility. In fact, she was senior counsel to the division when DOH was dealing with the aftermath of the death, in 2001, of a 19-year-old girl following liposuction performed in a plastic surgeon’s office. When the girl’s parents complained to DOH, an immediate investigation revealed that the office of the surgeon, Dr. Richard Glunk, should have been licensed as an ASF, but was not.


As a result of the Glunk case, DOH initiated a campaign to encourage compliance with ASF licensure requirements. Chief Counsel Dutton would have been in the middle of that effort in 2002 when she was senior counsel. Yet she testified that she never considered treating abortion clinics – facilities where, according to the abortion regulations, “ambulatory gynecological surgery” is performed – as ambulatory surgical facilities.


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. Finally, Dutton, Brody, and Steele asserted that a provision of the abortion regulations – one that gives DOH the authority to approve facilities as abortion providers – somehow precludes any other health care law from applying to abortion clinics. The provision of the abortion regulations that DOH relies on to exempt abortion clinics from the requirements of the Health Care Facilities Act reads:

 Facility approval

(a) Every medical facility which performs abortions within this Commonwealth shall be approved by the Department.

(b) All medical facilities except hospitals may become

approved facilities upon submission of an application to the Department from a person authorized to represent such facility and, at the discretion of the Department, satisfactory completion of an onsite survey.

(c) Every hospital licensed or approved by the Department, which has filed with the Department the Abortion Facility

Registration form, and which meets the standards set forth in this title, will be deemed to be an approved facility by virtue of its hospital license or approval . . .

(d) Notwithstanding this section, facility approval for performance of abortions may be revoked if this subchapter is not adhered to 28 Pa. Code § 29.43 (emphasis added).

On its face, this explanation is nonsensical. The cited provision requires not only clinics, but also hospitals, to obtain DOH approval before abortions can be performed. This added approval requirement certainly does not exempt hospitals from all other applicable licensing requirements. Indeed section (c) assumes and refers to the licensing of the hospitals. This provision can no more remove abortion facilities from the regulations covering ASFs than it can remove DOH oversight responsibilities for hospitals.


If one were to accept DOH’s interpretation of its duties with respect to overseeing the quality of care in abortion facilities, those duties would be limited to granting or denying approval based on a single piece of paper – the “Abortion Facility Registration Form,” which contains the name and mailing address of a facility and a couple of check marks. Brody said that it is DOH practice to conduct an on-site survey of facilities before granting approval, but acknowledged that even that feeble effort at oversight is discretionary under the regulations. Then, once the initial approval is given, DOH –according to the rules that it wrote and interprets – never has to do anything else to monitor what happens in the abortion clinic.

Dutton, the chief counsel, testified that DOH’s only role with respect to abortion clinics is to collect certain reports from them:


Q: So which department of the Commonwealth of Pennsylvania is responsible for enforcing the Abortion Control Act? A: Primarily the Department of State and the District Attorney’s Office and other law enforcement.

Q: What about the Department of Health?

A: We have a role in enforcing it if certain reports are not filed and we become aware of the fact that that they’re not filed.

Q: And that’s it?

A: Uh-huh.

Q: So it’s just a paper thing?

* * *

A: Yes. . . .When you read the act, that is what it unfortunately says.

The DOH attorneys all complained similarly about how little authority the Abortion Control Act, and the accompanying regulations that DOH wrote, gives to the department to inspect, license, or monitor abortion clinics. But it is these lawyers who are responsible for allowing their department to ignore the plain language of the Health Care Facilities Act. That act gives DOH all the power it needs to assure safe abortion clinics. Yet, instead of applying the law as it is written, and counseling DOH to license abortion clinics as ASFs, these lawyers have used illogical arguments to evade the Health Care Facilities Act. They have insisted that a criminal statute, the Abortion Control Act, provides DOH’s only authority to protect the health and safety of women and premature infants aborted alive within abortion clinics. Essentially, they have tied their own hands and now complain that they are powerless.

The Secretary of Health has, since the February 2010 raid, ordered the department to start inspecting abortion clinics regularly. Nevertheless, the larger point remains: Women who go to abortion clinics and premature babies born alive at them deserve the same DOH protection as patients at other health care facilities. Abortion is legal, and political agendas should not influence how DOH carries out its responsibility to ensure the health and safety of medical patients at all facilities.

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