PHOENIX — State health director Cara Christ is pushing ahead with new rules on the sale of fetal tissue even though nothing in state law actually prohibits it.
Christ said a review of state statutes she performed on orders from Gov. Doug Ducey found that selling fetal tissue for profit is a crime only under federal law. The only state law on the subject makes it illegal to use a human fetus or any parts after an abortion for any medical experimentation or investigation.
Christ said though, she intends to force abortion clinics to file reports detailing not only the final disposition of any fetal tissue but any compensation received. That could include anything from simply covering its costs for transporting it to actually making a profit.
“We didn’t have a way at the department of getting that information and to know if it was going on,” she said. Christ said the new emergency rule, which she hopes to have enacted within weeks, will provide those answers.
But even if someone reports making a profit, that’s not a violation of state law. Christ said bringing state criminal charges likely would require a change in state statutes to criminalize such activity, something only the Legislature can do.
In ordering the review last month, Ducey said he was disturbed by undercover videos released by an anti-abortion group Progress that purport to show officials from Planned Parenthood discussing the sale of tissue.
“The footage released by The Center for Medical Progress regarding the alleged sale and trafficking of aborted fetal tissue and body parts by Planned Parenthood is horrifying and has no place in a civilized society,” Ducey said in a prepared statement. He directed Christ to perform “a thorough review of the law and immediately promulgate emergency rules designed to prohibit the illegal sale of any tissue from an unborn child.”
None of those videos involved Arizona. National officials of Planned Parenthood charge the videos were heavily edited and misleading, saying the discussions involved covering legitimate costs.
And Bryan Howard, president of Planned Parenthood Arizona, said clinics here do not make any fetal tissue available for any purposes.
“It’s not because we don’t support it,” he said of legitimate medical research.
“It’s just never been on our radar,” Howard continued. He said the organization instead focuses on its key mission of providing direct care rather than having to worry about setting up procedures for tissue donation.
Howard said, though, he cannot say whether Planned Parenthood will oppose or challenge the new rules, not out of concern that it would change his organization’s practices, but that it could result in new reporting burdens.
The Department of Health Services did not immediately provide a copy of the proposal that Christ and her agency have already sent to the Attorney General’s Office. But Christ said the information she wants, including how much compensation was received, will simply be added to the reports that abortion clinics already have to file on each pregnancy terminated.
That question of compensation, though, could lead to an investigation if any abortion provider puts in a number, any number.
Christ said she wants a monetary figure, even if it is only for costs clinics were reimbursed. She said if the numbers appear out of line, her agency would consult with the Attorney General’s Office to determine whether further inquiry was necessary.
That, however, goes to the question of what the state can do, given the lack of a statutory ban on selling tissue, other than forward the information to federal prosecutors.
Christ said state law requires abortion clinics to be licensed. More to the point, Christ said that law requires clinics to comply with all laws and rules — including the new ones she is proposing — under penalty of potentially being shut down.
But since those rules also would not ban the sale of fetal tissue, the only way for a clinic to break them is if it refuses to provide the information.
