[Med-privacy] Justice Dept. Seeks Hospitals’ Records of Some
Abortions
pmarshall
pwm@comcast.net
Thu, 12 Feb 2004 11:22:26 -0800
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<title>Justice Dept. Seeks Hospitals’ Records of Some Abortions</tit=
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<h5>February 12, 2004</h5>
<NYT_HEADLINE version=3D"1.0" type=3D" ">
<h2>Justice Dept. Seeks Hospitals' Records of Some Abortions</h2>
</NYT_HEADLINE>
<NYT_BYLINE version=3D"1.0" type=3D" ">
<font size=3D"-1"><strong>By ERIC LICHTBLAU</strong></font><br>
</NYT_BYLINE>
<table align=3D"right" border=3D"0" cellpadding=3D"0" cellspacing=3D"0">
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<NYT_TEXT>
<P>
<IMG src=3D"http://graphics7.nytimes.com/images/dropcap/w.gif" width=3D"4=
6" height=3D"33" align=3D"left" border=3D"0" alt=3D"W">ASHINGTON, Feb. 11=
=97 The Justice Department is demanding that at least six hospitals in N=
ew York City, Philadelphia and elsewhere turn over hundreds of patient m=
edical records on certain abortions performed there. </p>
<P>
Lawyers for the department say they need the records to defend a new law=
that prohibits what opponents call partial-birth abortions. A group o=
f doctors at hospitals nationwide have challenged the law, enacted last =
November, arguing that it bars them from performing medically needed abor=
tions.</p>
<P>
The department wants to examine the medical histories for what could amou=
nt to dozens of the doctors' patients in the last three years to determin=
e, in part, whether the procedure, known medically as intact dilation and=
extraction, was in fact medically necessary, government lawyers said. <=
/p>
<P>
But hospital administrators are balking because they say the highly unusu=
al demand would violate the privacy rights of their patients, and the sta=
ndoff has resulted in clashing interpretations from federal judges in re=
cent days about whether the Justice Department has a right to see the fi=
les. </p>
<P>
A federal judge in Manhattan last week allowed the subpoenas to go forwar=
d and threatened to impose penalties, and perhaps even lift a temporary b=
an he had imposed on the government's new abortion restrictions, if the r=
ecords were not turned over. </p>
<P>
But, also last week, the chief federal judge in Chicago threw out the s=
ubpoena against the Northwestern University Medical Center because he sa=
id it was a "significant intrusion" on the patients' privacy. </p>
<P>
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 Cra=
in's business journal in Chicago. </p>
<P>
The Justice Department is considering an appeal. </p>
<P>
The department's demands for the records are still pending against Columb=
ia Presbyterian Medical Center, Weill Cornell Medical Center and St. Luke=
's-Roosevelt Hospital Center, all in New York City; the University of Mic=
higan medical center in Ann Arbor; and Hahnemann University Hospital in P=
hiladelphia. At least one undisclosed hospital also appears to have been=
served with a subpoena, officials said.</p>
<P>
Judge Richard Conway Casey of Federal District Court in Manhattan, who is=
sued an order in December enforcing the government subpoenas, said at a h=
earing last week that the department had good reason to want the records,=
and he threatened to sanction the opposing lawyers in the case unless th=
e hospitals turned them over. </p>
<P>
"I will not let the doctors hide behind the shield of the hospital," Judg=
e Casey said, according to a transcript of the hearing. "Is that clear?=
I am fed up with stalls and delays."</p>
<P>
Judge Casey issued a temporary injunction in November preventing the gove=
rnment from enforcing the Partial-Birth Abortion Ban Act. He said last we=
ek that he was prepared to lift that injunction and possibly clear the wa=
y for the government to enforce the law if the records were not produced=
=2E</p>
<P>
Sheila M. Gowan, a Justice Department lawyer, told Judge Casey that the d=
emand for the records was intended in part to find out whether the docto=
rs now suing the government had actually performed procedures prohibited =
under the new law, and whether the procedures were medically necessary "o=
r if it was just the doctor's preference to perform the procedure."</p>
<P>
The department said in its unsuccessful effort to enforce the Northwester=
n subpoena that the demand for records did not "intrude on any signific=
ant privacy interest of the hospital's patients" because the names and ot=
her identifiable information would be deleted. </p>
<P>
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 hist=
ories will remain completely confidential."</p>
<P>
It is still unclear exactly how many patients would be affected by the su=
bpoenas =97 if they are enforced =97 because the affected hospitals are s=
till reviewing their case files. Officials said several dozen women who h=
ave obtained abortions could be affected.</p>
<P>
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. </p>
<P>
The University of Michigan, which initially refused to turn over the subp=
oenaed records because of privacy concerns, said it was discussing ways o=
f deleting enough identifying information to comply with the subpoena. =
Other hospitals said they remained concerned.</p>
<P>
Under the department's subpoena, "there still is enough identifiable info=
rmation in these records to identify these people," said Kelly Sullivan, =
a spokeswoman for Northwestern. </p>
<P>
Advocates for abortion rights said they were particularly troubled by th=
e subpoenas because of Attorney General John Ashcroft's history as an out=
spoken opponent of abortion in his days in the Senate. </p>
<P>
"This notion of John Ashcroft poring over medical records in a fairly unp=
recedented type of fishing expedition is exactly the type of privacy inva=
sion that worries people," said David Seldin, a spokesman for Naral Pro-C=
hoice America, an abortion rights organization. "The government just shou=
ldn't be involving itself in private medical decisions and second-guessin=
g doctors' ability to advise their patients properly."</p>
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