By Troy Anderson | Watchdog.org
ATLANTA — Despite his ties to the Obama White House, an embattled Georgia abortion doctor says he’s the victim of a political witch hunt.
Dr. Tyrone Cecil Malloy – who operated in a building owned by the wife and sister-in-law of U.S. Attorney General Eric Holder – said fraud charges he’s facing are politically motivated and based on unconstitutional state Medicaid laws.
Malloy’s attorneys asked the Georgia Supreme Court on Monday to reverse a lower court’s ruling denying Malloy’s motion to dismiss the indictment.
Lauren Kane, a spokeswoman for the Georgia Department of Law, declined to comment on the allegations, saying it is part of a “pending case which our office is prosecuting.” Kane’s office is required to file its response to the brief with the Georgia Supreme Court by Dec. 17.
Catherine Davis, a founding member of the anti-abortion groups National Black Prolife Coalition and the Restoration Project, said Malloy’s allegations are ludicrous.
“This case has been out there for more than a year,” Davis said. “And for (Malloy) to say that he wasn’t prosecuted under the previous Democratic regime and now the government has caught up with him and is pursuing criminal charges that probably should have been brought 20 years ago – that somehow that’s political shenanigans – is just ludicrous. It has nothing to do with politics. It has everything to do with following the laws of the state and the federal government.”
Davis and other pro-life advocates returned fire Tuesday, saying Malloy’s case is really an attempt to expand taxpayer funding of abortions.
“They are obviously trying to pave the way to get rid of the Hyde Amendment so that abortion will legally be covered under Obamacare,” said Michelle Wolven, the lead investigator and researcher for Eagle Watch, a Georgia abortion watchdog group that worked with Davis to uncover connections between Holder’s wife and Malloy.
The Hyde Amendment bars the use of federal funds to pay for abortions except in the case of rape or incest.
Dana Cody, an attorney and president and executive director of Life Legal Defense Foundation, a pro-life legal defense organization in California, described the lawsuit as a “glimpse of what we are in for pursuant to Obamacare – obfuscate in order to supplement the abortion industries’ income using taxpayer dollars.”
Malloy attorneys Thelma Wyatt Moore, M. Katherine Durant and Dwight L. Thomas would not provide a comment for this article.
Malloy was indicted on two counts of Medicaid fraud in 2011 along with the owner and operator of Old National Gynecology in College Park, Ga., and his former office manager, CathyAnn Edwards Warner.
The indictment alleged Malloy and Warner accepted nearly $390,000 in federal medical assistance payments for medical office visits associated with the performance of elective abortions and for ultrasound services that were never performed.
Malloy and Warner refused to enter a plea in the case, arguing the indictment was constitutionally flawed. A judge entered a not guilty plea on their behalf and denied their motion challenging the constitutionality of Georgia’s Medicaid law. Malloy and Warner appealed to the Georgia Supreme Court.
In October, Watchdog.org published Fulton County tax records showing Holder’s wife, Dr. Sharon Malone Holder – an obstetric and gynecological doctor at Foxhall OB/GYN in Washington, D.C. – and her sister, Margie Malone Tuckson, manage a family trust that owns the building where Malloy operated. A statement from the Georgia Department of Law revealed the building was home to Old National Gynecology, the medical practice where Malloy performed abortions.
Tuckson told Watchdog.org that she and her sister were “not technically on this deed” even though public documents show otherwise.
Holder did not disclose his wife’s co-ownership of the building in the financial disclosure reports he filed between 2008 through 2012 with the U.S. Office of Government Ethics.
Pro-life groups have called for a congressional investigation, alleging Holder’s connections to Malloy help explain his failure to prosecute abortion providers who run afoul of the law — as well as his eagerness to prosecute pro-life advocates who counsel women outside abortion clinics.
In their brief, Malloy’s attorneys noted he has practiced medicine in Georgia since 1981 and operates a gynecology practice that performs abortions for about half of its clients.
The attorneys asserted that Malloy bills Medicaid only for such services as lab tests and ultrasound to determine pregnancy, his standard practice for 20 years. Such lab tests and ultrasound are routinely reimbursed by Medicaid for patients who do not elect to terminate pregnancies, the attorneys wrote.
In January 2010, the Georgia Department of Community Health’s Program Integrity Unit conducted a review of Malloy’s clinic and found that patients who completed the clinic’s initial questionnaire form by stating that the purpose of their visit was to seek an abortion often had lab tests and ultrasound examinations on the same day the abortion was performed, the attorneys wrote.
In April 2010, the state health agency notified Malloy it would withhold his Medicaid payments because “services that were billed to Medicaid were related to an abortion.” Malloy appealed the decision to an administrative law judge who found the evidence “does not support a determination of fraud or willful misrepresentation under the Medicaid program,” the attorneys wrote.
Despite that finding, the attorneys claim, the Georgia Department of Law “ratcheted up its campaign of harassment and intimidation against Dr. Malloy by pressing criminal charges against him” using a law that is vague and arbitrary. And: “Specifically, as in this case, the law may be arbitrarily applied in a witch-hunt fashion to providers who file claims which appear to be authorized and paid under billing procedures established by the Medicaid rules.”
Davis, the pro-life activist whose work kick-started the Watchdog.org investigation, believes the real purpose of the appeal is to strike down the Hyde Amendment.
“Given Malloy’s ties to U.S. Attorney General Eric Holder and the fact that Holder has not pursued criminal charges against abortionists makes me think that they are going to try to use this case in particular to strike down the Hyde Amendment by saying its unconstitutionally vague,” Davis said.
“I think that perhaps this is why the attorney general has not pursued charges against abortionists because he now has a case in which his long-time family friend is giving him the opportunity to challenge the constitutionality of the Hyde Amendment. I absolutely think that is what is going on.”
Edited by Tori Richards. Contact Troy Anderson at [email protected]