October 18, 2013 — The Alabama Department of Health on Wednesday proposed new rules that would reduce the number of abortions doctors can perform before their facilities would be regulated as abortion clinics, the AP/Sacramento Bee reports (Reeves, AP/Sacramento Bee, 10/16).
Under current rules, a medical office is considered an abortion clinic if it performs at least 30 abortions during any two months of the year and represents itself as an abortion provider (Women's Health Policy Report, 8/12). The proposed rule would change the minimum number of abortions to 10 in any single month and at least 100 annually. The rule would not be subject to Legislature approval.
Brian Hale -- an attorney for the state health department -- said the new rule is partly in response to a recent court case in which a Jefferson County judge ordered a Birmingham abortion clinic to close after a lengthy battle with the state that partly hinged on the number of abortions performed at the clinic (AP/Sacramento Bee, 10/16).
Fight Over Definition of Abortion Clinic
The judge in August issued a permanent injunction to close the New Woman All Women clinic for violating a state law by operating without a license. State regulators first tried to close it in April 2012, citing "multiple and serious violations of State Board of Health rules." Diane Derzis, the clinic's owner, agreed to surrender the clinic's license and closed the facility that May. The Alabama Department of Public Health then allowed Derzis to lease the Birmingham facility to a new operator, Kelley Rain-Water, with the stipulation that Rain-Water would run the facility independently of Derzis. However, the department denied Rain-Water's application for a license on the grounds that Derzis and her company would play an active role by profiting from the arrangement. Rain-Water subsequently submitted a renegotiated lease.
This March, DPH sued entities involved with the facility, claiming that the business was performing abortions illegally despite having agreed to shut down. Companies and individuals named in the suit subsequently filed a series of motions to dismiss it. They denied that the business is illegally operating as an abortion provider or that they are involved with the clinic.
In August, Circuit Judge Joseph Boohaker determined that the New Woman All Women clinic "meets the definition of an abortion or reproductive health center."
In his opinion, Boohaker explained that the clinic "holds itself out" to the public as an abortion provider because its phone number connects callers to an abortion referral service. Based on the testimony of one of the clinic's providers, Bruce Norman, Boohaker calculated that the clinic performs enough abortions to be considered an abortion provider. Norman had stated that he provides no more than 14 abortions "every other week," which the judge said means that the clinic was within the limit for "10 months of the year" but in excess of the limit "for two months every year" (Women's Health Policy Report, 8/12).
Birmingham Clinic Targeted Again
In related news, a national antiabortion-rights group -- Life Legal Defense Foundation -- is asking the state "to inspect the facility and [its] business records to ensure that Norman is complying with both the law and with Judge Boohaker's court order," after reports that Norman planned to resume providing abortions at the facility in a private practice, the Birmingham News reports.
A lawyer representing Norman recently said the doctor plans to open a private practice at the facility and resume providing abortions, beneath the threshold that would require a license.
In a letter to Hale this week, Life Legal Defense Foundation attorney Allison Aranda wrote, "If Norman continues to operate an abortion center without first obtaining a license, then ADPH is obligated to pursue civil and criminal sanctions against Norman for performing illegal abortions."
However, Hale declined to conduct inspections, saying the department has "no information to suggest [Norman] is engaged in activities at this time to require a license." Hale added that the department would "be looking to see what he does," noting that the doctor and his lawyer "were going to share what [Norman's] plan was to ensure that it would not require a license" (Oliver, Birmingham News, 10/16).