"Leave Well Enough Alone"
How pro-choicers won a political victory by ignoring bad medicine.
Florida's special legislative session on abortion opened on Oct. 10, 1989. It was over before it began.
Gov. Bob Martinez, a Republican, had called the session in July. He had hoped to pass a package of abortion restrictions that would become a standard for the nation. He had badly miscalculated. Floridians didn't want the government meddling in their private lives. Not on guns; not on abortion.
In the month before the session opened, the Miami Herald and the state department of Health and Rehabilitative Services had found dangerous—and, in one case, fatal—conditions at four Florida abortion clinics. Martinez wanted new regulations to address the problem, but pro-choice groups and lawmakers were arrayed against him. They had the votes to crush him, and they were resolved to do it.
On the session's opening day, Greg Coler, the secretary of HRS, appeared before the Florida House Health Care Committee. He was asked why, if his department needed more authority to police clinics, it hadn't said so when clinic regulations had been debated a year earlier. He was full of excuses. He blamed the department's inaction on a 1982 federal court ruling that had limited the state's power to impose standards on abortion facilities. Furthermore, he pleaded, "There was a common wisdom that there weren't problems out there."
The committee's pro-choice members responded with excuses to avoid changing the law. They harped on Coler's failure to speak up in 1988 and refused to take him seriously now. They argued that his manifest ability to close the rotten clinics proved that the system worked. Coler was mystified. "The point of regulations is to protect people before a dangerous situation develops," he argued.
Pro-choice lawmakers insisted on treating abortion just like other medical procedures. Then they demanded exceptions. They claimed that current law gave Coler the authority he wanted. Then they complained that a new law to make that authority clear would be unconstitutional. They said Florida should wait for the U.S. Supreme Court to clarify which regulations were constitutional. And when a moderate pro-choice legislator proposed to spend public funds to help poor women offset the cost of new regulations, Ruth Arick, the vice president of the Florida Abortion Council, which represented many of the state's clinics, declined the offer.
One bill under consideration copied the standards of the National Abortion Federation, a private quality-control organization, almost verbatim. Despite this, Arick refused to accept it. She said the proposed regulations were too rigid. And in case that wasn't reason enough to oppose them, a pro-choice lawmaker added that the NAF standards they followed were too vague.
In desperation, the governor's lobbyist offered the committee a blank check. "What do you want us to go in there and look for?" he asked. "Do you think that we ought to have some control on the pharmaceuticals? Do you think we ought to ensure that there is infection control?" Whatever the answer was, he requested one thing: "Would you put it in law?"
There was an obvious deal to be cut. Martinez needed a bill to sign. In exchange, pro-choicers could write the bill. The clinic investigations had found two glaring holes in the system. One was a jurisdiction gap. HRS lacked the power to punish doctors. Florida's Department of Professional Regulation had that power but lacked the authority to inspect clinics. The only way to put teeth in the inspections was to integrate the agencies, at least through information exchange. Second, cleanliness wasn't included in the HRS inspection protocol, and clinic operators could legally deny inspectors access to most of their premises. "There may at this particular point not be a way for those inspectors to examine the clinic," Arick conceded. A legislator pressed the point: "You're telling me that the clinic cannot be shut down because of material that can cause infection, at least not by the state." Arick didn't flinch: "In essence, yes."
The bill would have to go through the Florida Senate Health Care Committee. Its chairwoman, Jeanne Malchon, wasn't eager to help Martinez. She ruled out regulations that inflated costs unnecessarily or disclosed patients' names to the state. She didn't want to pick on abortion clinics, but she also didn't think they should be spared the kind of scrutiny that followed discoveries of lousy care in other branches of medicine. She thought HRS had the authority to check clinics for cleanliness, but she recognized that this was disputed. Why not settle the question? And if HRS wasn't relaying findings to DPR, legislation could fix that, too.
Malchon offered to support a bill containing those two provisions, as long as pro-lifers agreed not to amend it with additional restrictions once it reached the Senate floor. Pro-choice activists rushed to kill the deal. They warned of amendments, but even if that didn't happen, they worried that any legislative success would bail out Martinez politically. They also feared that passage of a clinic safety bill would lend credence to the idea that the abortion business needed fixing. "The whole country is watching us," said one pro-choice strategist. "We have to avoid setting a precedent." Another acknowledged afterward that he and his allies would never have accepted any deal: "It was important to make the governor lose on all counts."
Will Saletan covers science, technology, and politics for Slate and says a lot of things that get him in trouble.
Photo of the Florida House chamber courtesy the Florida Legislature Web site.