The U.S. Court of Appeals for the Fifth Circuit has partially stayed a ruling by a federal judge in Texas that would have blocked access to an abortion medication. (Photo illustration by Laura Rosina/Getty Images)
The administration of Gov. Ron DeSantis wants to punish a doctor who violated the state’s 24-hour rule on abortion by stripping away her medical license.
The push to revoke the license is going forward even though an administrative law judge (ALJ) who looked at the physician’s actions suggested a $10,000 fine and a reprimand.
But the Florida Department of Health has taken exception to the judge’s position and is asking the Florida Board of Medicine (BOM) to revoke the license of Dr. Candace Cooley.
“The Board [of Medicine] should send a clear message to Respondent and every other physician in Florida that knowing and complying with the laws governing their practice is not optional, and serious breaches of this duty will be met with serious consequences,” DOH Chief Andrew Pietrylo Jr. wrote in a 19- page exception to Administrative Law Judge James Peterson’s recommended order.
Gov. Ron DeSantis signed Florida’s 15-week abortion ban into law on April 14, 2022. Credit: Governor Ron DeSantis Facebook.
The case against Cooley is slated to be discussed during the Board of Medicine’s Dec. 6 meeting in Orlando. That would be shortly after voters in the state decide whether to pass Amendment 4, an initiative that would bar government interference with abortion up to the point of viability. The DeSantis administration has been actively engaged in a campaign designed to convince voters to vote down the amendment.
Cooley was charged with a single violation of “failing to perform any statutory or legal obligation placed upon a licensed physician” stemming from 193 abortions she performed between April 25 and May 7, 2022, without waiting 24 hours between consultation and the procedure — one of the mandated informed consent requirements that are part of the state’s abortion laws.
In his recommended order, Peterson said the state cannot discipline Cooley on charges not alleged in the complaint. The DOH alleged a single violation of the law, not 193 separate violations.
Pietrylo argued Peterson’s conclusion is “illogical” and that since the filing of the complaint Cooley has known the state is seeking discipline based on her performing 193 abortions without adhering to the waiting period.
“According to the [administrative law judge] reasoning, the Department would have to plead 193 separate counts in its Administrative Complaint in order for the Board to consider the number of offenses as an aggravating factor. This would result in an entirely unwieldy and repetitive pleading for the parties and the ALJ to muddle through, and it would fail to provide Respondent with any additional meaningful notice of the charges against her,” Pietrylo wrote.
In legal filings Julie Gallagher, the attorney representing Cooley, said the state’s push to revoke Cooley’s license is “extreme and unwarranted.”
Inadvertent, unknowing and unintentional
Cooley practiced medicine in Florida between 1999–2011 and 2014–2023. She is certified by the American Board of Obstetrics and Gynecology. She provided both surgical and medication abortions with the “majority being medication abortions,” the record shows. She had previously been disciplined by the state medical board in 2019 and had restrictions placed on her license.
Cooley had been working at the Center of Orlando for Women, an abortion clinic, since 2019 but was unaware that Florida had a 24-hour waiting period for abortions. The restriction was passed in 2015 but had been put on hold pending litigation. Circuit Court Judge Angela Dempsey in early April upheld the law pending a written final order, which she issued on April 25, 2022.
Clinic management started contacting state health care regulators on April 14, asking about the effective date of the 24-hour waiting period. Julie Murano, the clinic’s human resources director, made 14 calls to the state Agency for Health Care Administration (AHCA).
“Each time she communicated with AHCA, she was told ‘we are aware of the ruling and we have no information’ or words to that effect,” the record shows. “On May 3, 2022, the contact at AHCA told Ms. Murano to stop calling every day and to check the website as the information would be posted on AHCA’s website when they received the information.”
The clinic implemented its 24-hour waiting period policy on May 9. Cooley, the only physician who performed abortions at the clinic, provided the 193 abortions between the date of the ruling and May 7.
AHCA ultimately fined the clinic $193,000, nearly three times more than an ALJ’s recommendation. The clinic raised the money it needed to cover the fine through crowdfunding.
AHCA regulates health care facilities but has no authority over health care professionals. So, the agency referred Cooley to the Department of Health, which houses the state’s medical and health care boards, for prosecution.
Retaliatory
Sixteen medical doctors had their licenses revoked by the BOM in state fiscal year 2022-23, the latest available data. By comparison, the BOM placed restrictions or limitations on 75 licenses during the same period.
“Revocation is traditionally reserved for the most egregious cases in which the board finds the physicians is an immediate threat to the safety of Florida patients,” said Jacksonville health care attorney and lobbyist Chris Nuland, who regularly attends the board meetings.
GET THE MORNING HEADLINES.
In her response to the department’s exceptions, Gallagher said none of the 193 patients who had abortions were injured as a result of Cooley’s actions and none filed complaints.
Cooley complied with all the other informed consent requirements in Florida’s abortion laws, including providing an ultrasound that confirms gestational age and information about abortions and the risks involved.
“To say she performed 193 abortions without informed consent is misleading,” Gallagher wrote.
Gallagher in her response also accuses the DeSantis administration of taking “retaliatory” action against Cooley, who chose not to waive her right to an administrative hearing. Before the administrative hearing, Gallagher contends, the board sought restrictions against Cooley’s license that would have prohibited her from performing abortions again in Florida.
“There was no indication Petitioner might seek revocation of Respondent’s license if she did not accept the offer, until the Department filed its Proposed Recommended Order and recommended revocation. This increase in penalty recommendation appears to be motivated by retaliation for Respondent taking the Department to a trial so she could present mitigation to the Judge which, in this case, took an hour.”
The move to revoke the license, Gallagher argues, is “extreme” because the board did not revoke Dr. Christopher Saputa’s license after he failed to provide emergency care to patients following abortions. Gallagher noted that his malpractice was found to be so severe that two patients nearly died and at least one lost her fertility.
‘In those grievous cases, the Board did not revoke Dr. Saputa’s license. Rather, it suspended him for one year and restricted him from performing abortions in Florida,” Gallagher wrote. “Similarly, some physicians with patient deaths related to the Brazilian Butt Lift procedure have not had their licenses revoked but, rather, have been given remedial education and monitoring.”
The DOH’s Pietrylo, though, argues the 193 women were exposed to “significant potential harm” and that revocation, not a fine, is the fitting punishment.
“Respondent’s violation was inherently severe because it deprived women of their right to make a fully informed decision about whether to terminate their pregnancy. It also exposed the women to significant potential harm — even if no actual harm resulted. These patients proceeded with a medical procedure that could lead to excessive bleeding, infection, organ perforation, adverse reactions to medications, and even death, without having the full amount of time required to consider these risks.”
Anti-abortion board members
The Florida Board of Medicine is a 15-member panel appointed by the governor and charged with disciplining physicians and establishing rules and standards of care for medical doctors in the state.
Dr. Steven Christie is an oncological radiologist in Miami, creator of the website Speaking for the Unborn, and Board of Medicine member. (Source: Catholic Charities of Central Florida)
The case against Cooley is slated to be discussed during the Board of Medicine’s Dec. 6 meeting in Orlando.
DeSantis’s choice to appoint Dr. Steven Christie, an oncological radiologist in Miami and creator of the website Speaking for the Unborn, to the board made headlines earlier this year.
In addition to practicing medicine, Christie lectures regularly on “marriage, family, and the dignity of life,” according to Catholic Charities of Central Florida’s website. He’s also an attorney and creator of a book and video teaching series on abortion that New York Archbishop Timothy Dolan called a “must-read.”
DeSantis reappointed Dr. Hector Vila to the board. Vila is politically active on the abortion issue. The anesthesiologist was a witness for the state when the 24-hour waiting period was being litigated and testified that he was “not aware of another area of medicine, besides abortion, in which a non-emergency outpatient invasive procedure is performed without a prior visit and consultation.”
He stated that the lack of a 24-hour waiting period “would fall below the acceptable medical standard of care.”
Gallagher told the Florida Phoenix Thursday that her client received a “reasonable recommendation from the ALJ but the department is trying to increase the penalty to revocation. We will see what the board does.”
YOU MAKE OUR WORK POSSIBLE.