Repro-Brief: Indiana Takes a New Approach to Eliminating Abortion Access

Robin Marty

Allen County, Indiana's attempt to overregulate its single abortion provider shows a new approach being taken in the war on access to the procedure.

Editor’s Note: This article was updated on Tuesday, June 15 at 3:33 pm to correct an error.  Allen County has only one surgical abortion provider, not the full state of Indiana.

This year it seems as if every state has taken a new and novel approach to attempting to restrict abortion access.  Nebraska has mental health screenings and abortion bans after the 20th week.  Oklahoma has, among other methods, a new invasive survey that can potentially give away your identity if you seek the procedure.  Florida, like many states, is pushing mandatory ultrasounds.  Alaska is working on a parental notification statute.

But Allen County, Indiana has done something completely different from the norm.  They have taken the fight straight to the abortion practitioner.  Singular.

The county has only one doctor who provides surgical abortions. Rather than regulate the number of hoops that women need to go through to obtain his services, the Allen County department of health has changed regulation in order to literally run the doctor out of town.

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From the Fort Wayne Journal Gazette:

Fort Wayne’s lone surgical abortion provider is suing to stop a new county ordinance from being enforced.

Dr. George Klopfer, operator of Fort Wayne Women’s Health, is challenging a county law that requires doctors who don’t live in Allen County or surrounding counties or who don’t have admitting privileges to area hospitals to provide contact information to area emergency rooms and the local health department.

Klopfer lives in Illinois but is based out of South Bend. He also performs abortions in Fort Wayne and Gary.

Dubbed the “Patient Safety Ordinance,” anti-choice advocates claim it is necessary due to a high number of “botched abortions” being performed by Dr. Klopfer.  The accusation comes from 2007 from local obstetrician/gynecologist Dr. Geoff Cly, who says he has treated “several” of Klopfer’s patients in 2007, and has been contacting legislators and testifying in favor of the ordinance ever since.  In 2008, Cly testified to two patients of his who had retained tissue (which he learned about only when they went to the emergency room due to the complications, as “patients many times are embarrassed to tell us they are considering a termination“).

A 2009 version of a regulation bill, which was debated at the state level, included requiring doctors to have privileges at various hospitals, despite the fact that witnesses testified both that it was incredibly difficult to get these privileges and that it would not provide additional quality assurance anyway.  The bill also specifically referred only to abortion providers.  That bill was passed in the Senate but defeated in the House.

Due to the failure of the bill, Allen County states that they were forced to pass an ordinance locally in order to protect “patient safety.”

After the state legislature looked at a bill to require a similar registration from abortion practitioners but county officials moved ahead when the bill failed.

Allen County Commissioner Nelson Peters move forward and told the News-Sentinel newspaper, “It’s intended to enhance patient safety, and perhaps now the state will have to get involved.”

Cathie Humbarger, executive director of the Allen County Right to Life Committee, told the paper her group supports the new measure, which it reportedly helped write.
“The best way to do this would be at the state level,” Humbarger said, “but if not, we’re thrilled it’s happening at the local level. That’s government at its finest.”

In the wake of the lawsuit filed by Klopfer, the usual groups have come out to provide legal assistance during the case, with Center for Reproductive Rights assisting the state ACLU to represent Klopfer, and the Alliance Defense Fund offering to defend Allen County for no cost.  The lawsuit alleges that the new ordinance would violate the privacy of both the doctors and patients.

Among other things, the ordinance would require out-of-town providers of abortion and other medical services to give contact information to other area health providers. The lawsuit claims the ordinance also would give health officials unlimited access to patient medical records and violate those patients’ right to privacy.

Failure to comply could result in closure of the provider’s facility, a $1,000 fine or both.

Courthouse News Service explains the issues with the ordinance in more detail.

Fort Wayne-Allen County enacted a law that unconstitutionally invades women’s privacy and restricts access to abortion, a women’s clinic claims in Federal Court. Fort Wayne Women’s Health clinic claims the law gives the county unrestricted access to patient records, and illegally restricts doctors who live outside the county from working in hospitals there.

The Fort Wayne-Allen County Department of Health now requires that “itinerate” physicians submit 24-hour contact information to emergency rooms and urgent care centers in the county, name an alternate “physician designee,” and give the county full access to patient records.

The ordinance, which took effect June 1, restricts the rights of patients seeking “reproductive health care,” who expect that their personal files will remain confidential, the clinic and a co-plaintiff doctor say.

If a complaint arises, the law gives the Allen-County Health Officer the power to review the facility’s records, and gives the officer unlimited access to the records of patients “who have undergone similar care,” according to the complaint.

The law does not require that the patient information then remain confidential, according to the complaint.

Klopfer has announced that he will be complying with the ordinance while his lawsuit is pending in order to avoid the fines.  As he and his clinic are registered with the state, he states he already supplies emergency contact information to his patients and has a written procedure for providing emergency medical care and contact numbers, per state rules.

If Klopfer is already providing a majority of the information required, and is complying with the ordinance while he is pursuing his lawsuit, why does it really matter that it exists at all?  As we’ve seen with ultrasound laws, mandatory waiting periods, and other abortion roadblocks, once one new type of law gets enacted in one state, it then quickly multiplies across the country, with duplicate ballot measures and laws being proposed throughout the nation.

Indiana is by no means the only state that has a situation with an out of state doctor coming into the state to provide access for women who wish to terminate their pregnancies.  For example, South Dakota has no abortion providers, and has providers brought in from other states.  A similar move in that state would make access even more difficult.  And, as states find the number of clinics and providers dwindling with every year, it could become an issue for even more states down the road.

Additionally, the idea of unrestricted access to the records of abortion patients continues a troubling trend started in Kansas when the Attorney General Phill Kline tried accessing private medical records to attack Dr. George Tiller during his anti-choice witch hunt.  It is one of the key issues that will likely be challenged in Oklahoma in regards to the “Statistical Reporting of Abortions” law which recently passed.  The threat of violating a patent’s privacy, letting her believe she could be found out, shamed, or some other way punished for her choice is key in anti-abortion intimidation.

Fighting ordinances like the “Patient Safety Ordinance” is necessary because if abortion fights can be moved to and decided by such a a small locality what looks like only minor encroachment can actually shift the entire landscape when it comes to access.  What just one county does seems so unimportant in the bigger picture when it comes to fighting for reproductive justice.  Plus, if that one county is the only access in a state, suddenly the whole scene has changed.  And when 87 percent of the counties in the United States have no abortion providers, that change can be devastating for the women who need assistance.

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