Challenging Bureaucratic Secrecy and the Abortion Distortion at Maryland’s Highest Court

The ACLJ was in court this week in Maryland arguing for the public’s right to information concerning health clinics, including abortion clinics where botched abortions have endangered and even killed women.

I argued this important case involving the public’s right to inform itself about government activities before the Maryland Court of Appeals, which has served as the state’s highest court since 1776.

Public access to accurate information about the government’s activities is the lifeblood of democracy. As Thomas Jefferson once explained, “if a nation expects to be ignorant and free in a state of civilization, it expects what never was and never will be.”

Although the First Amendment protects our fundamental right to critique, praise, or otherwise comment upon government actions and inactions, to petition the government to change the status quo, and to organize with other likeminded people to pursue such activities, this right would have little practical significance without meaningful public access to information about what the government is up to.

Not surprisingly, there is a venerable American tradition of public access to the halls of Congress, state legislatures, local government meetings, and civil and criminal court proceedings. In addition, Congress and every state legislature have enacted freedom of information laws (often called FOIA’s) that provide broad access to public records, so that the public can better inform itself about issues of public concern and the government’s handling of important matters.

As explained in our Court of Appeals brief, our Maryland case was prompted by tragic events that caught the public’s eye in 2010 after a botched abortion in Elkton, Maryland by Dr. Steven C. Brigham. Government officials and the public were appalled to learn that Brigham, who had previously lost his license to practice medicine in Pennsylvania, New York, and Florida, and had been convicted of tax evasion, had evaded the watch of Maryland health officials prior to the 2010 incident coming to light. The New York Times, not exactly a pro-life publication, noted that “[t]he continuing case of Dr. Brigham is a cautionary one, showing that a determined person, working behind the anonymity of private corporations and moving among states, can flout even strong medical regulations.”

In light of the lack of sufficient government oversight of surgical abortion facilities, the Maryland Department of Health and Mental Hygiene enacted regulations to ensure that the individuals who own and manage such facilities do not have past histories like Dr. Brigham, and also to authorize periodic reviews of such facilities to ensure that they meet basic safety standards. In 2013, the licenses of three clinics were temporarily suspended after a woman died following an abortion procedure.

Our client, Andrew Glenn, submitted a request under Maryland’s Public Information Act (the state version of FOIA) seeking copies of the applications submitted by the owners, administrators, and medical directors of facilities seeking licensure under the new regulations. In light of the tragic events that precipitated the enactment of the regulations, disclosure of the requested records would allow the public to monitor whether the Department has adequately vetted those responsible for the safety of the facilities to ensure that another Dr. Brigham is not allowed to operate in Maryland.

In response, the Department denied the request, relying on a relatively obscure exception to the statute that requires the government to file a petition to seek a court ruling holding that disclosure of the records at issue “would cause substantial injury to the public interest.”

How obscure is the exception that the government cited to deny access to these records? In the roughly 45 year history of the Maryland law, there are only two reported instances in which the government previously relied on this exception, and in both cases, Maryland appellate courts rejected the government’s view and ordered that the records be disclosed.

In fact, the Maryland law provides greater access to public records than the federal FOIA law. The Maryland legislature has made it quite clear that, except in certain discreet categories of cases where disclosure would clearly cause harm, the public’s right to access public records is supreme.

Unfortunately, the trial court and intermediate appellate court accepted the Department’s claim that release of the requested records threatened to expose abortion providers to harassment and violence, thereby limiting women’s access to abortion. The Maryland Court of Appeals then granted our petition for certiorari and agreed to hear the case.

At the hearing, I emphasized that the lower court decisions improperly shielded the Department’s oversight of surgical abortion facilities from public scrutiny despite the fact that the Department itself had acknowledged that there was considerable, legitimate public interest in the enactment and ongoing enforcement of the regulations. Also, the Supreme Courts of Minnesota, Kansas, and Illinois had previously considered similar cases and all concluded that the public’s right to monitor the government dictated that relevant records be made publicly available.

In essence, the Department’s position amounts to “trust us, we are doing a good job,” and since the public records exception at issue is not tied to one particular subject matter, a decision upholding the Department’s claim would give a green light to government agencies, departments, and officials of all kinds to shield their own work from public view as well.

Perhaps individuals living in other countries are content to routinely take government statements about how great of a job the government is doing at face value without being allowed to verify such statements, but a healthy distrust of government claims of perfection or infallibility are engrained in America’s DNA. As one survey of Americans’ views of government put it, distrusting government is “as American as apple pie” and “the roots of government distrust stretch far back into America’s past.”

To be fair to those who work in government, problems of corruption, power-grabbing, incompetence, complacency, or mere honest mistakes are certainly not limited to government work – indeed the government often protects us from such harms and/or punishes those who inflict them upon us – but a foundational principle of American government is that the public must, in as many circumstances as possible, be allowed to monitor the government in order to properly steer its courses of action. As James Madison wrote in Federalist Paper 51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government . . . .

In the Maryland case, we certainly hope that the Department will adequately monitor abortion facilities so that individuals who have no business taking women’s lives and health into their hands – the Dr. Brighams of the world – will be prevented from doing so despite Maryland’s tragic past track record, but the public should not be required to blindly trust that to be the case.

While the Dr. Brigham tragedy is still fresh in people’s minds, perhaps the government’s diligence in monitoring facility safety will gradually decline as time moves on; the public must be allowed to ensure that does not happen. Ensuring that the public can adequately monitor the government’s oversight of those who run facilities that provide surgical procedures of any kind – thereby taking people’s lives and health into their own hands – is not a pro-life or pro-choice issue; it is an issue of broad public importance that cuts across all ideological and political lines.

We are hopeful that the Court of Appeals will permit the public to properly oversee its government’s handling of such important issues, and will update you when a decision is reached.