[Med-privacy] Austin Chronicle Story on Bush Medical Privacy Flip-Flops

[DPeelMD@aol.com]

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=20

HOME: MARCH 19, 2004: COLUMNS AND FEATURES: LETTERS AT 3AM
=20
Letters at 3AM
Speaking of your privates ...
BY MICHAEL VENTURA=20

=20
illustration by Jason Stout

President George W. Bush has been skipping around the country accusing Sen.=20
John Kerry of "flip-flops." Well ... I gotchyer flip-flop right here. It's a=
=20
doozy. And it threatens not only the privacy but also, in a quite direct way=
,=20
the privates of the citizens of these United States.=20
In 2000, Bush ran on a platform that loudly supported medical privacy. He ha=
s=20
said, "I believe privacy is a fundamental right." In April 2001, he promised=
=20
to protect, he said, "the right of every American to have confidence that hi=
s=20
or her personal medical records would remain private." Tommy G. Thompson,=20
secretary of health and human services, chimed in: "We are giving patients p=
eace=20
of mind in knowing that their medical records are confidential and their=20
privacy is not vulnerable to intrusion."=20
That promise has been broken. On March 6, The New York Times ran a polite=20
headline on page eight: "Administration Sets Forth a Limited View on Privacy=
."=20
Decide for yourself the extent of the flip-flop =E2=80=93 and whether the st=
ory didn't=20
call for starker headlines on page one.=20
The Bush-Ashcroft Justice Department is attempting to force hospitals and=20
clinics to turn over medical records on thousands of abortions. More than 2,=
700=20
files have been demanded in the San Francisco area alone. Files are also bei=
ng=20
sought from Kansas, Missouri, Pennsylvania, and Washington, D.C., as well as=
=20
the cities of L.A., Philly, Pittsburgh, New York City, and still counting.=20
Ashcroft claims these records will help him defend a new law prohibiting=20
partial-birth abortions. Doctors are challenging the law on the ground that=20=
it prevents=20
certain abortions even when they're medically necessary.=20
Fundamentally, Bush's claim is that the government can instruct doctors on=20
the needs and treatment of their patients. One function of law is to set=20
precedents. If the government has the right to dictate one aspect of medicin=
e, and if=20
that right is unchallenged and/or upheld, then a precedent has been set for=20
government to dictate other medical priorities. There are honorable argument=
s=20
for and against abortion, but it is difficult to imagine an honorable argume=
nt=20
for the government's right to dictate specific medical care. If government c=
an=20
dictate something so intimate and personal then what, according to that=20
precedent, can it not dictate?=20
Flip-flopping drastically on his 2001 promise, Bush's Justice Department now=
=20
states that patients "no longer possess a reasonable expectation that their=20
histories will remain completely confidential," adding that federal law "doe=
s=20
not recognize a physician-patient privilege." Do not overlook a point that=20
should be as alarming to conservatives as to progressives: These sweeping=20
statements do not single out abortion cases; they cover all medical practice=
. The=20
government is claiming the right to pry into any medical records =E2=80=93 p=
sychiatric, for=20
instance, or records of substance-abuse treatment, AIDS, rape, incest,=20
anything at all. Your privates, in short.=20
That is a radical reversal of two centuries of American legal practice. It i=
s=20
also a reversal and denial of what every American expects and assumes when i=
n=20
need of a doctor's help. When is anyone more vulnerable than when they need=20=
a=20
doctor? The Bush administration is claiming the right to intrude upon that=20
vulnerability.=20
This point was not lost on federal District Judge Phyllis J. Hamilton, who=20
denied the Justice Department access to abortion records from San Francisco=20=
area=20
hospitals and Planned Parenthood clinics. The Times reported her stand that=20
"forcing the providers to turn over records would undermine the privacy righ=
ts=20
of patients and could dissuade some from seeking treatment." Judge Hamilton=20
said, "There is no question that the patient is entitled to privacy and=20
protection. Women are entitled to not have the government looking at their r=
ecords."=20
When put that baldly, it's astonishing we're even having the argument. Of=20
course people are entitled to not have the government snoop on their medical=
=20
treatment. Bush doesn't agree, but, this being an election year, he's been f=
orced=20
to flip-flop back slightly. On March 9, Justice withdrew subpoenas from=20
Planned Parenthood clinics, stating that "we will not move at this time" but=
 might=20
"renew our requests if necessary." For "if necessary" read "if re-elected."=20=
As=20
of this writing, hospitals are still being harassed.=20
A Justice Department sop to privacy has been that names would be deleted fro=
m=20
the records. But note: That nicety is not in their basic contention that=20
people "no longer possess a reasonable expectation" of patient privacy and t=
hat=20
federal law "does not recognize a physician-patient privilege." Judge Hamilt=
on=20
said the records the government is demanding contain "potentially identifyin=
g=20
information of an extreme personal and intimate nature," including the age o=
f=20
first sexual experience, types of contraception used, details of abuse and o=
f=20
sexually transmitted diseases. Bush doesn't say why he needs those details,=20=
but=20
he claims the right to know them.=20
The Times summarizes other critiques of his efforts: "If patients have no=20
reasonable expectation of privacy ... the government may be more aggressive=20=
in=20
seeking records from hospitals, insurance companies, and other businesses in=
=20
criminal, civil, and administrative cases." That's putting it mildly. The on=
ly=20
possible motivation for claiming such sweeping rights is to assemble dossier=
s of=20
intimate material which, if Bush wins this issue, can then be used against=20
dissenters of all kinds. (Remember that under the USA PATRIOT Act, many form=
s of=20
dissent can be classed as "terrorism" at the president's whim.)=20
As is Bush's usual practice, he sent a small fry to publicly defend these=20
drastic subpoenas, a spokesman named Trent D. Duffy (where does the far righ=
t get=20
these names?!), who assured us all that this president is "strongly committe=
d=20
to medical privacy." The Bush White House does not answer questions. Instead=
=20
it issues sweeping statements and is unconcerned that its statements=20
arrogantly contradict its actions. Trent D. Duffy did not mention that the g=
overnment=20
has not informed any of the patients concerned that it wants their records.=20=
Nor=20
did he comment on what else the government is demanding. This is the Times'=20
summary of the government's demands, and let's print it in bold, since it's=20
certainly bold:=20
"The government also seeks these materials for the last three years:=20
Records of any second-trimester abortion in which the patient suffered a=20
medical complication, regardless of the technique.=20
Records in any case in which a doctor caused a fetus' death by injecting=20
chemical agents in the womb in the second or third trimester.=20
Documents related to any medical malpractice claims arising from certain=20
abortions.=20
The names of all doctors who have performed any type of abortion."=20
The last item is especially chilling. All but "partial-birth" abortions are=20
legal. So why is Bush demanding the names of all doctors who've performed a=20
legal procedure? Obvious answer: a list for a witch hunt. If Bush is re-elec=
ted,=20
those doctors can expect excessive, harassing scrutiny of their taxes,=20
insurance forms, Medicare and Medicaid forms, etc. A president who breaks hi=
s promise=20
to protect "the right of every American to have confidence that his or her=20
medical records will remain private" (his own flip-flopping words), is easil=
y=20
capable of such harassment, especially when he need not worry about re-elect=
ion.=20
Remember that the Bill of Rights includes articles 9 and 10 of the=20
Constitution: "9) The enumeration in the Constitution of certain rights shal=
l not be=20
construed to deny or disparage others retained by the people. 10) The powers=
 not=20
delegated to the United States by the Constitution, nor prohibited by it to=20
the States, are reserved for the States respectively, or to the people." Str=
ict=20
constructionists lie when they claim that if a right is not in the=20
Constitution it doesn't exist. The Bill of Rights insists, twice, that not o=
nly the=20
states but also the people have rights that are not enumerated in the Consti=
tution=20
but that nevertheless must not be disparaged or denied. To deny that an=20
inalienable right of privacy is assumed in the Bill of Rights is to deny the=
 Bill of=20
Rights.=20
Which is only to underline that the election of 2004 is the most important o=
f=20
our lifetime. For if Bush doesn't consider even your medical records private=
=20
(as he promised he would), he must assume that your privacy itself is=20
government property. =20

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spatch/images/trans.gif" width=3D456 align=3Dbottom><BR><FONT class=3Dsans s=
ize=3D2>HOME: MARCH 19, 2004: COLUMNS AND FEATURES: LETTERS AT 3AM</FONT><BR=
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<H2 class=3Dheadlineblue>Letters at 3AM</H2>
<H3 class=3Dkicker><I>Speaking of your privates ...</I></H3><FONT class=3Dby=
line size=3D2>BY MICHAEL VENTURA</FONT>=20
<P><BR clear=3Dall><IMG height=3D300 alt=3D"" src=3D"http://www.austinchroni=
cle.com/issues/dispatch/2004-03-19/cols_ventura-1.jpg" width=3D300 border=
=3D0>=20
<P><I><FONT class=3Dsans size=3D2>illustration by Jason Stout</FONT></I><BR>
<P>President George W. Bush has been skipping around the country accusing Se=
n. John Kerry of "flip-flops." Well ... I gotchyer flip-flop right here. It'=
s a doozy. And it threatens not only the privacy but also, in a quite direct=
 way, the privates of the citizens of these United States.=20
<P>In 2000, Bush ran on a platform that loudly supported medical privacy. He=
 has said, "I believe privacy is a fundamental right." In April 2001, he pro=
mised to protect, he said, "the right of every American to have confidence t=
hat his or her personal medical records would remain private." Tommy G. Thom=
pson, secretary of health and human services, chimed in: "We are giving pati=
ents peace of mind in knowing that their medical records are confidential an=
d their privacy is not vulnerable to intrusion."=20
<P>That promise has been broken. On March 6, <I>The New York Times</I> ran a=
 polite headline on page eight: "Administration Sets Forth a Limited View on=
 Privacy." Decide for yourself the extent of the flip-flop =E2=80=93 and whe=
ther the story didn't call for starker headlines on page one.=20
<P>The Bush-Ashcroft Justice Department is attempting to force hospitals and=
 clinics to turn over medical records on <I>thousands</I> of abortions. More=
 than 2,700 files have been demanded in the San Francisco area alone. Files=20=
are also being sought from Kansas, Missouri, Pennsylvania, and Washington, D=
.C., as well as the cities of L.A., Philly, Pittsburgh, New York City, and s=
till counting. Ashcroft claims these records will help him defend a new law=20=
prohibiting partial-birth abortions. Doctors are challenging the law on the=20=
ground that it prevents certain abortions even when they're medically necess=
ary.=20
<P>Fundamentally, Bush's claim is that the government can instruct doctors o=
n the needs and treatment of their patients. One function of law is to set p=
recedents. If the government has the right to dictate one aspect of medicine=
, and if that right is unchallenged and/or upheld, then a precedent has been=
 set for government to dictate other medical priorities. There are honorable=
 arguments for and against abortion, but it is difficult to imagine an honor=
able argument for the government's right to dictate specific medical care. I=
f government can dictate something so intimate and personal then what, accor=
ding to that precedent, can it <I>not</I> dictate?=20
<P>Flip-flopping drastically on his 2001 promise, Bush's Justice Department=20=
now states that patients "no longer possess a reasonable expectation that th=
eir histories will remain completely confidential," adding that federal law=20=
"does not recognize a physician-patient privilege." Do not overlook a point=20=
that should be as alarming to conservatives as to progressives: These sweepi=
ng statements do not single out abortion cases; they cover <I>all</I> medica=
l practice. The government is claiming the right to pry into any medical rec=
ords =E2=80=93 psychiatric, for instance, or records of substance-abuse trea=
tment, AIDS, rape, incest, anything at all. Your privates, in short.=20
<P>That is a radical reversal of two centuries of American legal practice. I=
t is also a reversal and denial of what every American expects and assumes w=
hen in need of a doctor's help. When is anyone more vulnerable than when the=
y need a doctor? The Bush administration is claiming the right to intrude up=
on that vulnerability.=20
<P>This point was not lost on federal District Judge Phyllis J. Hamilton, wh=
o denied the Justice Department access to abortion records from San Francisc=
o area hospitals and Planned Parenthood clinics. The <I>Times</I> reported h=
er stand that "forcing the providers to turn over records would undermine th=
e privacy rights of patients and could dissuade some from seeking treatment.=
" Judge Hamilton said, "There is no question that the patient is entitled to=
 privacy and protection. Women are entitled to not have the government looki=
ng at their records."=20
<P>When put that baldly, it's astonishing we're even having the argument. <I=
>Of course</I> people are entitled to not have the government snoop on their=
 medical treatment. Bush doesn't agree, but, this being an election year, he=
's been forced to flip-flop back slightly. On March 9, Justice withdrew subp=
oenas from Planned Parenthood clinics, stating that "we will not move at thi=
s time" but might "renew our requests if necessary." For "if necessary" read=
 "if re-elected." As of this writing, hospitals are still being harassed.=20
<P>A Justice Department sop to privacy has been that names would be deleted=20=
from the records. But note: That nicety is not in their basic contention tha=
t people "no longer possess a reasonable expectation" of patient privacy and=
 that federal law "does not recognize a physician-patient privilege." Judge=20=
Hamilton said the records the government is demanding contain "<I>potentiall=
y identifying</I> information of an extreme personal and intimate nature," i=
ncluding the age of first sexual experience, types of contraception used, de=
tails of abuse and of sexually transmitted diseases. Bush doesn't say why he=
 needs those details, but he claims the right to know them.=20
<P>The <I>Times</I> summarizes other critiques of his efforts: "If patients=20=
have no reasonable expectation of privacy ... the government may be more agg=
ressive in seeking records from hospitals, insurance companies, and other bu=
sinesses in criminal, civil, and administrative cases." That's putting it mi=
ldly. The only possible motivation for claiming such sweeping rights is to a=
ssemble dossiers of intimate material which, if Bush wins this issue, can th=
en be used against dissenters of all kinds. (Remember that under the USA PAT=
RIOT Act, many forms of dissent can be classed as "terrorism" at the preside=
nt's whim.)=20
<P>As is Bush's usual practice, he sent a small fry to publicly defend these=
 drastic subpoenas, a spokesman named Trent D. Duffy (where does the far rig=
ht get these names?!), who assured us all that this president is "strongly c=
ommitted to medical privacy." The Bush White House does not answer questions=
. Instead it issues sweeping statements and is unconcerned that its statemen=
ts arrogantly contradict its actions. Trent D. Duffy did not mention that th=
e government has not informed any of the patients concerned that it wants th=
eir records. Nor did he comment on what else the government is demanding. Th=
is is the <I>Times</I>' summary of the government's demands, and let's print=
 it in bold, since it's certainly bold:=20
<P>"The government also seeks these materials for the last three years:=20
<P>Records of any second-trimester abortion in which the patient suffered a=20=
medical complication, regardless of the technique.=20
<P>Records in any case in which a doctor caused a fetus' death by injecting=20=
chemical agents in the womb in the second or third trimester.=20
<P>Documents related to any medical malpractice claims arising from certain=20=
abortions.=20
<P>The names of all doctors who have performed any type of abortion."=20
<P>The last item is especially chilling. All but "partial-birth" abortions a=
re legal. So why is Bush demanding the names of <I>all</I> doctors who've pe=
rformed a legal procedure? Obvious answer: a list for a witch hunt. If Bush=20=
is re-elected, those doctors can expect excessive, harassing scrutiny of the=
ir taxes, insurance forms, Medicare and Medicaid forms, etc. A president who=
 breaks his promise to protect "the right of every American to have confiden=
ce that his or her medical records will remain private" (his own flip-floppi=
ng words), is easily capable of such harassment, especially when he need not=
 worry about re-election.=20
<P>Remember that the Bill of Rights includes articles 9 and 10 of the Consti=
tution: "9) The enumeration in the Constitution of certain rights <I>shall n=
ot be construed to deny or disparage others retained by the people</I>. 10)=20=
The powers not delegated to the United States by the Constitution, nor prohi=
bited by it to the States, are reserved for the States respectively, <I>or t=
o the people</I>." Strict constructionists lie when they claim that if a rig=
ht is not in the Constitution it doesn't exist. The Bill of Rights insists,=20=
twice, that not only the states but also the people have rights that are not=
 enumerated in the Constitution but that nevertheless must not be disparaged=
 or denied. To deny that an inalienable right of privacy is assumed in the B=
ill of Rights is to deny the Bill of Rights.=20
<P>Which is only to underline that the election of 2004 is the most importan=
t of our lifetime. For if Bush doesn't consider even your medical records pr=
ivate (as he promised he would), he must assume that your privacy itself is=20=
government property. <IMG height=3D8 alt=3D"end story" src=3D"http://www.aus=
tinchronicle.com/issues/dispatch/images/ding.gif" width=3D8> </P></DIV></BOD=
Y></HTML>

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