Imagine a state with a business or industry – any business or industry – with a horrendous track record of harming, sometimes even killing its customers. For years this business has somehow managed to fly under the radar of state regulators, concealing its slipshod, unsafe practices from those whose job it is to oversee it. Some of its practitioners have even lost their licenses to do business in other states. Finally, after being publicly embarrassed by revelations of major injuries and deaths at the hands of this business, state regulators adopt “tough” new regulations designed to ensure that the shady characters who previously ran amok can no longer hide behind shell corporations and other facades, covering their tracks while continuing to prey on an unsuspecting public.
Now imagine you are a consumer looking to avail yourself of the services of this business. Since you’ve heard something about its shoddy safety record, you’re naturally wary. Yes, you’ve heard that the state’s done something to improve things, but you’re reluctant to take the bureaucrats’ word for it that “hey, we’ve got it under control now, trust us.” After all, it’s your health and even life that are at stake, not some regulator’s. Oh, and it doesn’t help that somebody told you that the head of the state agency that regulates this business was just given some big award by the business’s well-heeled, well-connected lobbying outfit! But when you ask the state regulators for basic information to help you decide whether or not you want to trust the now “regulated” business, the bureaucrats slam the door in your face. Not only that, they file a lawsuit (naming you as respondent), asking a court to ratify their refusal to help you!
Welcome to Maryland’s abortion industry and its eerily cozy relationship with that state’s Department of Health and Mental Hygiene. This week, on March 3rd, I had the privilege of arguing in the Maryland Court of Special Appeals the case of Andrew Glenn vs. Maryland Department of Health and Mental Hygiene. I’ve reported on this case here and here. Glenn is a Maryland citizen who was appalled by his state’s well-documented history of lax oversight of abortion providers who have over the years left a trail of maimed and dead women. Following the Department’s adoption of new regulations in 2012 that required abortion providers to actually apply for licenses, actually using their real identities, Glenn decided to do a little follow up research of his own. He wanted to check up on just how serious the state had become about policing this industry. (Among other things, his antennae went up when he learned that NARAL, the National Abortion Rights Action League, one of the country’s foremost apologists and lobbyists for the abortion industry had, in 2013, bestowed a “Leadership Award” on none other than the head of the Department of Health!)
Glenn submitted to the Department of Health a routine public records request under the state’s Public Information Act asking to see copies of the licensure applications submitted by abortion providers. (The Act is available to every citizen in Maryland; citizens can make such requests for any reason whatsoever. Mere curiosity is a good enough reason under the Act’s provisions.) Glenn thought this would be enough information for him to do a simple internet cross-reference check of the names of practitioners who may have been disciplined or had their licenses revoked elsewhere. In a way, he was actually looking to help the Department with its own job of oversight.
But Glenn ran into a bureaucratic brick wall. He got back partial records with the identities of the people who had applied for licenses – the one critical piece of information he needed -- censored. The Department’s reason? “Public safety concerns.” Whose safety? Not the unsuspecting consumers, whose very lives have been harmed in the past by unqualified practitioners roaming the state preying upon vulnerable women. No, the Department’s concern was for the owners, officers, administrators and medical directors of the abortion facilities themselves.
The Department then filed a lawsuit, naming Glenn as the respondent, seeking court approval for its extraordinary refusal to disclose what is supposed to be public information. They won in the Circuit Court and we appealed.
Throughout the lawsuit, and again this week at Court of Special Appeals, the Department has argued that “the public interest” would be injured by disclosing the names of the abortion business owners and operators because some such owners and operators have been targets of harassment and violence over the years. And yet the Department has consistently failed to show a single instance in which the safety of those people has ever been so much as threatened by someone getting information via a public records request or otherwise accessing a public record. Not one. It’s a purely emotional appeal, devoid of logic, but - so far- successful.
What’s also lost in this argument, however, is the reality – not conjecture - that because of the Department’s hyper-vigilance for the safety of the people it’s supposed to be regulating rather than their potential victims, women in Maryland are kept in the dark. The Department’s paternalistic and, indeed, chauvinistic policy – “we’ll decide what you need to know, honey” - prevents women from getting information they might consider crucial in making this monumental decision. In denying Glenn’s request, the Department is shutting the door, to not just citizen “watchdogs” who want to check up on their own government, but also to the woman who, however tragically, may be contemplating abortion and wants to make sure she’s not submitting her very life to a dangerous quack. It’s bad enough that under our current regime the life of her unborn child counts for nothing. In the twisted world of abortion industry “regulation,” her own life doesn’t seem to count for much more than that.
During this week’s argument, we were able to present the appeals court with compelling arguments for reversing the lower court’s decision to keep Maryland’s citizens in the dark when it comes to finding out who is doing abortions in their state. We expect a decision in this matter by June of this year.
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