[IP] Wow... no privacy left, is there?
Delivered-To: dfarber+@xxxxxxxxxxxxxxxxxx
From: "Steve Berlin" <smberlin@xxxxxxxxxxxx>
To: "Dave Farber" <dfarber@xxxxxxxxxx>
Subject: Fwd: Wow... no privacy left, is there?
Date: Thu, 12 Feb 2004 08:22:12 -0800
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Justice Dept. Seeks Hospitals' Records of Some Abortions
By ERIC LICHTBLAU
Published: February 12, 2004
ASHINGTON, Feb. 11 -- The Justice Department is demanding that at least six
hospitals in New York City, Philadelphia and elsewhere turn over hundreds of
patient medical records on certain abortions performed there.
Lawyers for the department say they need the records to defend a new law that
prohibits what opponents call partial-birth abortions. A group of doctors at
hospitals nationwide have challenged the law, enacted last November, arguing
that it bars them from performing medically needed abortions.
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The department wants to examine the medical histories for what could amount
to dozens of the doctors' patients in the last three years to determine, in
part, whether the procedure, known medically as intact dilation and
extraction,
was in fact medically necessary, government lawyers said.
But hospital administrators are balking because they say the highly unusual
demand would violate the privacy rights of their patients, and the
standoff has
resulted in clashing interpretations from federal judges in recent days about
whether the Justice Department has a right to see the files.
A federal judge in Manhattan last week allowed the subpoenas to go forward
and threatened to impose penalties, and perhaps even lift a temporary ban
he had
imposed on the government's new abortion restrictions, if the records were
not turned over.
But, also last week, the chief federal judge in Chicago threw out the
subpoena against the Northwestern University Medical Center because he
said it was a
"significant intrusion" on the patients' privacy.
A woman's relationship with her doctor and her decision on whether to get an
abortion "are issues indisputably of the most sensitive stripe," and they
should remain confidential "without the fear of public disclosure," the
judge,
Charles P. Kocoras, wrote in a decision first reported by Crain's business
journal in Chicago.
The Justice Department is considering an appeal.
The department's demands for the records are still pending against Columbia
Presbyterian Medical Center, Weill Cornell Medical Center and St.
Luke's-Roosevelt Hospital Center, all in New York City; the University of
Michigan medical
center in Ann Arbor; and Hahnemann University Hospital in Philadelphia. At
least one undisclosed hospital also appears to have been served with a
subpoena,
officials said.
Judge Richard Conway Casey of Federal District Court in Manhattan, who issued
an order in December enforcing the government subpoenas, said at a hearing
last week that the department had good reason to want the records, and he
threatened to sanction the opposing lawyers in the case unless the
hospitals turned
them over.
"I will not let the doctors hide behind the shield of the hospital," Judge
Casey said, according to a transcript of the hearing. "Is that clear? I
am fed
up with stalls and delays."
Judge Casey issued a temporary injunction in November preventing the
government from enforcing the Partial-Birth Abortion Ban Act. He said
last week that
he was prepared to lift that injunction and possibly clear the way for the
government to enforce the law if the records were not produced.
Sheila M. Gowan, a Justice Department lawyer, told Judge Casey that the
demand for the records was intended in part to find out whether the
doctors now
suing the government had actually performed procedures prohibited under
the new
law, and whether the procedures were medically necessary "or if it was
just the
doctor's preference to perform the procedure."
The department said in its unsuccessful effort to enforce the Northwestern
subpoena that the demand for records did not "intrude on any significant
privacy
interest of the hospital's patients" because the names and other identifiable
information would be deleted.
Citing federal case law, the department said in a brief that "there is no
federal common law" protecting physician-patient privilege. In light of
"modern
medical practice" and the growth of third-party insurers, it said,
"individuals
no longer possess a reasonable expectation that their histories will remain
completely confidential."
It is still unclear exactly how many patients would be affected by the
subpoenas -- if they are enforced -- because the affected hospitals are still
reviewing their case files. Officials said several dozen women who have
obtained
abortions could be affected.
A lawyer for the National Abortion Federation, a plaintiff in the lawsuit
before Judge Casey, told him that, over all, "many hundreds" of medical
documents
would be covered. The federation is a trade organization that represents
abortion providers.
The University of Michigan, which initially refused to turn over the
subpoenaed records because of privacy concerns, said it was discussing
ways of
deleting enough identifying information to comply with the subpoena.
Other hospitals
said they remained concerned.
Under the department's subpoena, "there still is enough identifiable
information in these records to identify these people," said Kelly
Sullivan, a
spokeswoman for Northwestern.
Advocates for abortion rights said they were particularly troubled by the
subpoenas because of Attorney General John Ashcroft's history as an outspoken
opponent of abortion in his days in the Senate.
"This notion of John Ashcroft poring over medical records in a fairly
unprecedented type of fishing expedition is exactly the type of privacy
invasion that
worries people," said David Seldin, a spokesman for Naral Pro-Choice America,
an abortion rights organization. "The government just shouldn't be involving
itself in private medical decisions and second-guessing doctors' ability to
advise their patients properly."
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