ARTICLES
February 2004 ARTICLES
Contents © 2004
by Jim Holman.
All rights reserved.
Death Appeal
Pro-lifers, Pro-Aborts Await Ninth Circuit Ruling
BY MARIA KENNEDY
On December 4, the ninth circuit court of appeals in San Francisco heard oral arguments in Tucson Women's Clinic v. Eden, a case concerning the regulation of abortion clinics in Arizona. The Arizona abortion clinic regulation laws stem from the death of Lou Ann Herron, who went to the A-Z Woman's Clinic in Phoenix, Arizona, for an abortion on April 17, 1998. According to the police reports and numerous media investigative reports at the time, Herron bled to death on account of the negligence of the abortionist, Dr. John Biskind, and the chaotic conditions at the abortion clinic. (See sidebar story, "Get Out of Here!" below.)
After Herron's death on April 17, 1998, the Arizona state legislature passed an abortion regulation law. The law was stayed after the Center for Reproductive Rights sued the state of Arizona in March of 2000 sued on behalf of the Tucson Woman's Clinic, as well as several abortionists. The plaintiffs contend that the regulation of abortion clinics by the state of Arizona is unconstitutional. The Center for Reproductive Rights, a New York city abortion rights group, sued every prosecutor in the state of Arizona in order to stop them from possibly prosecuting doctors whose standard of care is not compliant with the regulation. The clinics and doctors joining the litigation include: Dr. Robert H. Tamis, William Richardson, Tuscon Woman's Clinic, Old Pueblo Family Planning, and Abortion Services of Phoenix.
After a federal judge largely upheld the abortion regulation law in September 2002, three abortionists, who were represented by the pro-abortion Center for Reproductive Rights, appealed the ruling to the ninth circuit court of appeals. The grounds for the appeal were that the unannounced inspections during business hours allowed by the state's regulations would be a violation of the Fourth Amendment right to be free of unlawful search and seizure. The judge agreed that these violated the Fourth Amendment; he also ruled that the state could not review patient records that contained the names of patients or ultrasound readings as this would violate a patient's right to privacy. The judge upheld most of the regulations on the grounds that the laws merely mirror the abortion industry's own policies and procedures and do not unduly hamper women from receiving an abortion.
The case is being closely watched by both pro-abortion and pro-life groups because other circuits, namely the fourth and fifth circuits, have upheld clinic regulation laws.
The ninth circuit is generally considered to be the most liberal circuit court in the country and the one whose decisions have been most overturned by the United States Supreme Court. In the case of Planned Parenthood Columbia/Willamette v. American Coalition of Life, a three-judge panel of the ninth circuit said that a pro-life web site and a group of pro-life activists who listed the names and addresses of abortionists on the web site were not a threat and that their actions were protected speech. In their March 2001 ruling, the panel said that the web site, called the Nuremburg Files, did not incite violence against abortionists, as Planned Parenthood alleged. After the ruling, Planned Parenthood and its allies appealed the decision to a larger panel of judges in the ninth circuit, who reversed the three-judge ruling on May 16, 2002, saying the web site contained "true threats" against abortionists. The case was then sent back to the trial court in Oregon, where the case was first tried. As of mid January, the case is still before the trial court in Oregon.
In June 2002, another three judge panel of the 9th Circuit ruled that the wording, "under God" in the Pledge of Allegiance was unconstitutional. The ruling has been appealed to the Supreme Court of the United States.
In spite of the uncertainty of a ruling by the ninth circuit in the Arizona case, the Chicago-based American United for Life, which represented the state of Arizona in the litigation, is still confident that they are on firm legal ground. Denise Burke, one of the lawyers who argued the case before the ninth circuit at its courtrooms in downtown San Francisco on December 4, said that, regardless of the outcome, the case would proceed. "Regardless of who wins the appeal, this case will be appealed to the U.S. Supreme Court," Burke said. "If the ninth circuit strikes down the regulations, reaching a different result than the fourth and fifth circuits, it will be more likely (but not a guarantee) that the U.S. Supreme Court will take the case."
Burke said each side was given 20 minutes to argue before the ninth circuit. "The judges grilled both sides, but were more hostile to me," said Burke. "I would characterized the judges' questioning of me as 'hostile.'" Though she said it was difficult to remember the precise questions the judges asked her (it had been two months since the hearing), Burke said the judges "asked a lot of questions about why the regulations were needed for abortion clinics and not other types of medical facilities; why abortion was being singled out 'for special treatment'; why the admitting privileges requirement in the regulations will not act as a third party veto over what physicians may perform abortions; how the state's enforcement mechanism satisfied Fourth Amendment concerns (i.e. why the state needs to conduct unannounced compliance inspections)."
The 9th Circuit is expected to issue an opinion in the case by mid-2004.
GET OUT OF HERE!
On the morning of April 17, Lou Ann Herron was the first client to arrive at the clinic. After undergoing the abortion at approximately 12:30 p.m., Herron begin to bleed profusely. When Herron was wheeled into the recovery room sometime before 1:30 p.m., she was drowsy and pale, according to the testimony clinic staffers gave the police during their investigation of Herron's death. The registered nurse that normally staffed the recovery room had left early that day, and the clinic administrator did not replace her with another registered nurse. Instead, clinic administrator Carol Stuart-Schadoff assigned two recently-hired clerical workers to staff the recovery room. Both women, Theresa Jensen and Kaihya Jimenez, lacked any clinical experience.
Jensen and Jimenez took Herron's blood pressure and got a reading so low that they thought the machine was broken. They took Herron's blood pressure again and again to see if they were not making a mistake. Shortly before 2 p.m., another clinic worker, Mabel Lopez, walked into the recovery room and saw Herron bleeding profusely and became alarmed. Lopez then went to search for Dr. John Biskind, the abortionist, and found him in the lunch room. When he was told about Herron's condition, he became angry at being bothered at lunch. Biskind told Lopez, "get out of here," according to the account she gave investigators. Lopez then went to look for the clinic administrator, who also became upset at being bothered.
Though the Good Samaritan hospital was across the street from her clinic, at approximately 2 p.m., Stuart-Schadoff called the Family Planning Institute in Scottsdale, Arizona, for help. It was a twenty-minute drive between the clinic in Scottsdale and the clinic where Herron was. After Biskind finished his lunch, he checked on Herron and adjusted the IV that the recovery room staff had put on her. At about 3:45 p.m., Biskind left the clinic without telling anyone. When the medical assistant from the Scottsdale saw Herron, she told Stuart-Schadoff that the paramedics should be summoned, but the clinic administrator was adamant that the doctor be contacted first. Unable to locate Biskind, employees finally reached him by pager at 4:12 p.m. and told him that Herron was still bleeding profusely. Biskind's reply was, "well what do you want me to do? Call 911."
Clinic personnel told police during the investigation of the events surrounding Herron's death that when they called 911, they asked the ambulance to "come by the side door, right on 10th Street and try not to use the sirens." The clinic workers were afraid that the sirens would be seen as "making a scene."
Captain Arnie Barajas of the Phoenix fire department, who responded to the 911 call, said when he saw Herron lying on the bloodied gurney, she appeared dead. She was then taken across the street to Good Samaritan hospital, where she was pronounced dead at 4:50 p.m.
Dr. Biskind was convicted in May 2001 and sentenced to five years and ordered to pay restitution of $12,841. He is currently in state prison in Arizona. Stuart-Schadoff was sentenced to four years probation and ordered to pay $12,841 in restitution. The court found Stuart-Schadoff guilty of negligent homicide.