Taxpayers Get Tab For Dropped Abortion Clinic Cases

Jun 17, 2016

Florida taxpayers are on the hook for tens of thousands of dollars in legal fees for the state's failed attempt to fine four abortion clinics accused of performing second-trimester abortions without proper licenses.

The cost to the state Agency for Health Care Administration of hiring outside attorneys to pursue a $2,500 fine against the Bread & Roses Women's Health Center in Gainesville was $58,345, according to an agency spokeswoman.

Outside counsel for cases involving three Planned Parenthood clinics cost the state $18,551. Also, those amounts don't include fees that attorneys for Bread & Roses and the Planned Parenthood clinics are trying to collect from the state.

In the Bread & Roses case, AHCA Secretary Liz Dudek issued a final order this month accepting the findings of Administrative Law Judge Lawrence P. Stevenson, who concluded the agency had shown "a puzzling persistence" in pursuing the charges against clinic.

“There was no basis to bring the complaint in the first place," Bread & Roses attorney Robert Weiss said. "Despite all of our efforts to explain that to the agency, they refused to listen."

In August, AHCA conducted surprise inspections of Bread & Roses and the three Planned Parenthood centers in St. Petersburg, Fort Myers and Naples. The agency then brought administrative charges against the clinics, contending they performed second-trimester abortions. The clinics were only licensed to perform first-trimester abortions.

AHCA investigators relied on a rule defining the second trimester as "the portion of a pregnancy following the 12th week and extending through the 24th week of gestation." Some abortions at the clinics were performed after the 12th week but before the 14th week.

The clinics said they had not performed illegal procedures, but that the agency used a shifting definition of what constitutes the first trimester. They pointed to a longstanding AHCA rule that allowed first-trimester abortions during the 14 weeks after a woman's last normal menstrual period.

"I argued with the inspector and told her repeatedly, 'We don't do that. We only do procedures up to 13.6 weeks, dated from the first day of the last period,' " said Kristin Davy, the owner and director of Bread & Roses. "Every single chart she had confirmed that."

The allegations by AHCA came at a volatile time in Florida and nationally about abortion issues. In June 2015, Bread & Roses became a plaintiff in a lawsuit seeking to block a new state law requiring women to wait 24 hours before having abortions. The next month, a national furor erupted after an anti-abortion group released videos purporting to show Planned Parenthood executives discussing the sale of fetal tissue, though the videos were later discredited.

Davy said she did not have an issue with AHCA investigators coming to the Bread & Roses clinic to look at charts.

"That they willfully ignored explanations for months and required a court case --- why was this time and money spent?" Davy said. "That's what makes me feel like I was targeted. There's no logical explanation why they would pursue this to a court case. Zero."

AHCA spokeswoman Mallory McManus said in an email that the agency "investigated all clinics who self-reported performing procedures beyond 13 weeks gestation, which was outside the scope of their license, as a first-trimester clinic. Following evidence indicating the provider performed an abortion beyond the scope of their license, AHCA complied with its statutory duty to file an administrative complaint seeking fines."

But Stevenson, the administrative law judge, wrote in his recommended order, "It was not reasonable for the agency to disregard the reasonable explanations provided by the Bread & Roses office manager and by Ms. Davy. (The AHCA investigator) herself could not say why AHCA decided to file an administrative complaint alleging that Bread & Roses performed five second-trimester abortions, or why her documentation of her conversations with the office manager and Ms. Davy were excised from the final version of her survey report."

The allegations against the three Planned Parenthood clinics were dropped in March, following Scott's signing of a bill that, in part, would change the definition of a first trimester to the period from fertilization through the end of the 11th week of pregnancy.

"I have never seen cases like this that were just made up out of whole cloth, with no factual basis, no legal basis, no medical basis --- and charges filed against licensees that were forced to defend them," attorney Julie Gallagher, who represented the Planned Parenthood clinics, said.