[Med-privacy] NYT editorial

[pmarshall]

February 14, 2004

Privacy in Peril

 In an attempt to bolster its defense of the unconstitutional Partial
Birth Abortion Act of 2003, the Bush administration has gone  beyond its
campaign to destroy women's reproductive rights and has attacked the
privacy rights of all Americans.

This assault is being conducted through subpoenas the Justice Department
has issued demanding that at least six hospitals in New York
City, Philadelphia, Illinois and elsewhere turn over hundreds of patient
records for certain abortions. This egregious intrusion on patients'
privacy is being pursued in the name of defending lawsuits against the
abortion ban. Not only is the information not needed to do that, but
it is also a flagrant example of why Congress and the attorney general
have no business second-guessing sensitive medical decisions made by
individuals and their doctors.

Judges in New York and Nebraska have barred the administration from
enforcing the abortion law in response to suits brought by groups
of doctors, who have argued, correctly, that the ban should be struck
down because of imprecise wording and the lack of an exception to
protect a woman's health. A narrow Supreme Court majority struck down a
state ban in 2000 for omitting a health exception.

Attorney General John Ashcroft says the fishing expedition his
department has started is justified to evaluate whether the procedures
covered by the law are ever necessary to preserve a woman's health. In a
sound ruling last week, a federal judge in Illinois rebuffed this
flimsy argument. Citing state and federal law, as well as Supreme Court
precedent, the judge, Charles Kocoras, also rejected the Ashcroft
team's astonishing claim that no doctor-patient privilege exists under
federal law protecting patients from public disclosure of their
records.

Unfortunately, the federal judge in New York overseeing one of the legal
challenges to the new law does not grasp his duty to protect
patient privacy. That judge, Richard Conway Casey of New York's Southern
District, has threatened to lift his injunction blocking
enforcement of the abortion ban if leading hospitals in New York City
and elsewhere fail to produce files on at least several dozen
women's abortions.

Underscoring the legally dubious nature of Judge Casey's threat, the
hospitals in question are not themselves parties to the lawsuit. Nor,
for that matter, are the women whose personal privacy Mr. Ashcroft is so
determined to invade. Moreover, as Judge Kocoras aptly noted,
redacting a patient's name and identification number from her file
neither ends the harm to individuals of having intimate details of their

medical history publicly disclosed, nor adequately protects the
patients' identities.

We applaud those hospitals that are resisting Mr. Ashcroft's privacy
invasion, and encourage them to stand firm until the legal
proceedings run their course. Meanwhile, Americans should see Mr.
Ashcroft's intimidating tactics for the dangerous threat to liberty and
privacy they really are.

                        Copyright 2004 The New York Times Company