[Med-privacy] NYTimes: Foes of Federal Ban on Abortion Method Are to Argue Their Cases
DPeelMD@aol.com
DPeelMD@aol.com
Tue, 30 Mar 2004 23:45:42 EST
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Dear All,
Jim Pyles, the lead attorney for the lawsuit against HHS to restore the righ=
t=20
of consent (our attorney), was quoted in Monday's NYTimes story regarding th=
e=20
medical privacy rights of women whose abortion records are sought by the DOJ=
=20
(see story below). He is advising most of the Planned Parenthood clinics and=
=20
hospitals holding records Ashcroft seeks to access.=20
Ashcroft's abortion record subpoenas were based on HIPAA, which grants=20
unfettered access to the nation's medical records by law enforcement, withou=
t=20
judicial oversight. This is the same section in HIPAA that Florida police us=
ed to=20
access to the prescription and medical records of Rush Limbaugh. These cases=
=20
reveal one of the worst privacy defects in HIPAA. With a privacy rule this b=
ad,=20
who needs a disclosure rule?
Unfettered law enforcement access to medical records demonstrates why we nee=
d=20
to restore our federal right of consent. Our federal lawsuit seeks to=20
eliminate the amendments to HIPAA which took away that fundamental right.=20
Without a federal right of consent, powerful opponents of medical privacy=20
will seek to eliminate stronger state medical privacy laws in every state, j=
ust=20
as they are doing in TX. They lobbied our Legislature to enact SB 3611 which=
=20
decreed that TX laws and regs must be brought "into compliance" with the=20
eviscerated amended HIPAA Privacy Rule.
Furthermore, mental health and privacy advocates and those who value civil=20
and human rights must also seek to remove the specific section in HIPAA that=
=20
grants law enforcement complete access to medical records, without first hav=
ing=20
to convince a judge why patient privacy should be violated.
Deborah Peel, MD
See www.patientprivacyrights.org for all the briefs in the lawsuit to save=20
consent and other info about patient privacy, including key stories in the=20
national media.
The New York Times
March 29, 2004
Foes of Federal Ban on Abortion Method Are to Argue Their Cases
By SUSAN SAULNY
Courts in three states are scheduled to hear legal challenges today to the=20
Partial-Birth Abortion Ban Act, with opponents arguing that it is=20
unconstitutional and overly broad.
"My heart is in my throat; this is an extraordinary challenge to a terrible=20
law for women's health and rights," Gloria Feldt, president of Planned=20
Parenthood Federation of America, said in an interview on Friday. "This law=20
is bad medicine. It basically puts politicians in the examining room."
The Department of Justice, however, has called the law necessary to stop a=20
violent practice that is medically unnecessary. In a statement released=20
Friday, it said that it "will be devoting all resources necessary to defend=20
the bipartisan findings of Congress that this violent practice is=20
unnecessary, as well as painful and cruel to the partially-born child."
Lawsuits were filed in Federal District Courts in Lincoln, Neb., San=20
Francisco and New York City in October while the ban was still a bill.=20
President Bush signed it into law in November, but judges in all three=20
states temporarily blocked enforcement.
The plaintiffs include the Center for Reproductive Rights, Planned=20
Parenthood, the National Abortion Federation and individually named doctors=20
from hospitals nationwide. The defendant named in all the cases is Attorney=20
General John Ashcroft.
The ban criminalizes a procedure that doctors call intact dilation and=20
extraction, which is sometimes used to terminate pregnancies after the=20
first trimester. Specifically, it bans any "overt act" to "kill the=20
partially delivered living fetus." Opponents contend that the language is=20
so broad that it covers even common abortion techniques used in the second=20
trimester of a pregnancy.
They also argue that the lack of any exception for a pregnant woman's=20
health makes it unconstitutional.
In 2000, the Supreme Court struck down a similar ban in Nebraska.
In preparation for trial, the Justice Department demanded that at least six=20
hospitals in New York City, Philadelphia, Chicago and elsewhere turn over=20
hundreds of medical records on certain abortions. Lawyers for the=20
department said they needed the records to examine the claims made by the=20
doctors who are plaintiffs that the ban would prevent them from providing=20
medically necessary procedures.
A federal judge in the Southern District of New York, Richard Conway Casey,=20
refused last week to reconsider his order that New York-Presbyterian=20
Hospital turn over records on abortions to the Justice Department. Judge=20
Casey said the records were not covered by federal laws protecting medical=20
privacy because the hospital could delete information identifying the=20
patients.
James Frank, a lawyer for the hospital, said last week that he planned to=20
appeal the decision in the Second Circuit Court of Appeals in Manhattan.
Federal judges in Chicago and San Francisco, however, have refused in=20
recent weeks to order the release of abortion records.
In Michigan, Judge Avern Cohn in Federal District Court in Detroit ordered=20
the University of Michigan Hospital to transmit redacted records under seal=20
to Judge Casey in New York, where he would decide their relevance for trial=20
there. But the University of Michigan Health System said it did not have=20
any records that fell within the criteria of what the government wanted.
"With those four rulings by four different courts, I don't know how any=20
citizen can determine what their privacy rights really are," said Jim=20
Pyles, an expert on privacy law who represents the American Psychoanalytic=20
Association. "Seems odd to me that the trial would proceed when we have not=20
yet resolved in all of these cases whether these patients have a=20
constitutional right to privacy. At least one court found that they do."
On Friday, a three-judge federal appeals panel in Illinois denied the=20
government's appeal in the Chicago case. Also on Friday, a federal judge in=20
Philadelphia ruled that the government could not have access to Hahnemann=20
University Hospital abortion records.
The Supreme Court may ultimately review the medical records decisions=20
because of the conflicts among the lower courts. Several people involved in=20
the suits about the abortion ban said they believed that issue, too, would=20
ultimately go before the Supreme Court.
For now, Mr. Pyles added, "as we head into the trials, we don't really have=20
a clear idea about what evidence will be presented."
The trial before Judge Richard G. Kopf of Federal District Court in=20
Nebraska is expected to be, in some ways, a repeat of the case that went to=20
the Supreme Court four years ago. In that case, the state ban on abortions=20
was declared unconstitutional. The lead plaintiff, Dr. LeRoy Carhart, is=20
the same.
As for what to expect at the trials, Louise Melling, the director of the=20
Reproductive Freedom Project at the American Civil Liberties Union, said,=20
"I think what we'll see in these cases are doctors testifying from all over=20
the country saying the same thing =E2=80=94 how the law will harm women's he=
alth,=20
how it will restrict access to abortions as early as 13 weeks, and how it=20
limits their discretion to care for women in the way they think is best."
The trials are expected to last at least three weeks.
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<DIV>
<DIV>
<DIV>Dear All,</DIV>
<DIV>Jim Pyles, the lead attorney for the lawsuit against HHS to restore the=
right of consent (our attorney), was quoted in Monday's NYTimes story&=
nbsp;regarding the medical privacy rights of women whose abortion records ar=
e sought by the DOJ <FONT color=3D#ff0000><FONT color=3D#000000>(</FONT=
>see story below</FONT>). He is advising most of the Planned=20=
Parenthood clinics and hospitals holding records Ashcroft seeks to=
access. </DIV>
<DIV> </DIV>
<DIV>Ashcroft's abortion record subpoenas were based on HIPAA, whi=
ch grants unfettered access to the nation's medical records by law enfo=
rcement, without judicial oversight. This is the same section in HIPAA=20=
that Florida police used to access to the prescription and medical reco=
rds of Rush Limbaugh. These cases reveal one of the worst pri=
vacy defects in HIPAA. With a privacy rule this bad, who needs a&n=
bsp;disclosure rule?</DIV>
<DIV> </DIV>
<DIV>Unfettered law enforcement access to medical records demonstrates&=
nbsp;why we need to restore our federal right of consent. Our=
federal lawsuit seeks to eliminate the amendments to HIPAA which=20=
took away that fundamental right. </DIV>
<DIV> </DIV>
<DIV>Without a federal right of consent, powerful opponents of medical priva=
cy will seek to eliminate stronger state medical privacy laws=
in every state, just as they are doing in TX. They lobbied our Legisla=
ture to enact SB 3611 which decreed that TX laws and regs must be=20=
brought "into compliance" with the eviscerated amended HIPAA Privacy Rule.</=
DIV>
<DIV> </DIV>
<DIV>Furthermore, mental health and privacy advocates and those who val=
ue civil and human rights must also seek to remove the specific se=
ction in HIPAA that grants law enforcement complete access to medical record=
s, without first having to convince a judge why patient privacy should be vi=
olated.</DIV>
<DIV> </DIV>
<DIV>Deborah Peel, MD</DIV>
<DIV>See <A title=3Dhttp://www.patientprivacyrights.org/ href=3D"http://www.=
patientprivacyrights.org/">www.patientprivacyrights.org</A> for all the brie=
fs in the lawsuit to save consent and other info about patient privacy,=
including key stories in the national media.</DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV> </DIV>
<DIV>The New York Times<BR>March 29, 2004<BR>Foes of Federal Ban on Abortion=
Method Are to Argue Their Cases<BR>By SUSAN SAULNY<BR><BR><BR>Courts in thr=
ee states are scheduled to hear legal challenges today to the <BR>Partial-Bi=
rth Abortion Ban Act, with opponents arguing that it is <BR>unconstitutional=
and overly broad.<BR><BR>"My heart is in my throat; this is an extraordinar=
y challenge to a terrible <BR>law for women's health and rights," Gloria Fel=
dt, president of Planned <BR>Parenthood Federation of America, said in an in=
terview on Friday. "This law <BR>is bad medicine. It basically puts politici=
ans in the examining room."<BR><BR>The Department of Justice, however, has c=
alled the law necessary to stop a <BR>violent practice that is medically unn=
ecessary. In a statement released <BR>Friday, it said that it "will be devot=
ing all resources necessary to defend <BR>the bipartisan findings of Congres=
s that this violent practice is <BR>unnecessary, as well as painful and crue=
l to the partially-born child."<BR><BR>Lawsuits were filed in Federal Distri=
ct Courts in Lincoln, Neb., San <BR>Francisco and New York City in October w=
hile the ban was still a bill. <BR>President Bush signed it into law in Nove=
mber, but judges in all three <BR>states temporarily blocked enforcement.<BR=
><BR>The plaintiffs include the Center for Reproductive Rights, Planned <BR>=
Parenthood, the National Abortion Federation and individually named doctors=20=
<BR>from hospitals nationwide. The defendant named in all the cases is Attor=
ney <BR>General John Ashcroft.<BR><BR>The ban criminalizes a procedure that=20=
doctors call intact dilation and <BR>extraction, which is sometimes used to=20=
terminate pregnancies after the <BR>first trimester. Specifically, it bans a=
ny "overt act" to "kill the <BR>partially delivered living fetus." Opponents=
contend that the language is <BR>so broad that it covers even common aborti=
on techniques used in the second <BR>trimester of a pregnancy.<BR><BR>They a=
lso argue that the lack of any exception for a pregnant woman's <BR>health m=
akes it unconstitutional.<BR><BR>In 2000, the Supreme Court struck down a si=
milar ban in Nebraska.<BR><BR>In preparation for trial, the Justice Departme=
nt demanded that at least six <BR>hospitals in New York City, Philadelphia,=20=
Chicago and elsewhere turn over <BR>hundreds of medical records on certain a=
bortions. Lawyers for the <BR>department said they needed the records to exa=
mine the claims made by the <BR>doctors who are plaintiffs that the ban woul=
d prevent them from providing <BR>medically necessary procedures.<BR><BR>A f=
ederal judge in the Southern District of New York, Richard Conway Casey, <BR=
>refused last week to reconsider his order that New York-Presbyterian <BR>Ho=
spital turn over records on abortions to the Justice Department. Judge <BR>C=
asey said the records were not covered by federal laws protecting medical <B=
R>privacy because the hospital could delete information identifying the <BR>=
patients.<BR><BR>James Frank, a lawyer for the hospital, said last week that=
he planned to <BR>appeal the decision in the Second Circuit Court of Appeal=
s in Manhattan.<BR>Federal judges in Chicago and San Francisco, however, hav=
e refused in <BR>recent weeks to order the release of abortion records.<BR><=
BR>In Michigan, Judge Avern Cohn in Federal District Court in Detroit ordere=
d <BR>the University of Michigan Hospital to transmit redacted records under=
seal <BR>to Judge Casey in New York, where he would decide their relevance=20=
for trial <BR>there. But the University of Michigan Health System said it di=
d not have <BR>any records that fell within the criteria of what the governm=
ent wanted.<BR><BR>"With those four rulings by four different courts, I don'=
t know how any <BR>citizen can determine what their privacy rights really ar=
e," said Jim <BR>Pyles, an expert on privacy law who represents the American=
Psychoanalytic <BR>Association. "Seems odd to me that the trial would proce=
ed when we have not <BR>yet resolved in all of these cases whether these pat=
ients have a <BR>constitutional right to privacy. At least one court found t=
hat they do."<BR><BR>On Friday, a three-judge federal appeals panel in Illin=
ois denied the <BR>government's appeal in the Chicago case. Also on Friday,=20=
a federal judge in <BR>Philadelphia ruled that the government could not have=
access to Hahnemann <BR>University Hospital abortion records.<BR><BR>The Su=
preme Court may ultimately review the medical records decisions <BR>because=20=
of the conflicts among the lower courts. Several people involved in <BR>the=20=
suits about the abortion ban said they believed that issue, too, would <BR>u=
ltimately go before the Supreme Court.<BR><BR>For now, Mr. Pyles added, "as=20=
we head into the trials, we don't really have <BR>a clear idea about what ev=
idence will be presented."<BR><BR>The trial before Judge Richard G. Kopf of=20=
Federal District Court in <BR>Nebraska is expected to be, in some ways, a re=
peat of the case that went to <BR>the Supreme Court four years ago. In that=20=
case, the state ban on abortions <BR>was declared unconstitutional. The lead=
plaintiff, Dr. LeRoy Carhart, is <BR>the same.<BR><BR>As for what to expect=
at the trials, Louise Melling, the director of the <BR>Reproductive Freedom=
Project at the American Civil Liberties Union, said, <BR>"I think what we'l=
l see in these cases are doctors testifying from all over <BR>the country sa=
ying the same thing =E2=80=94 how the law will harm women's health, <BR>how=20=
it will restrict access to abortions as early as 13 weeks, and how it <BR>li=
mits their discretion to care for women in the way they think is best."<BR><=
BR>The trials are expected to last at least three weeks.<BR></DIV></DIV></DI=
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