Suit over late-term abortion ban sparks privacy debate

In a twist in the court fight over the constitutionality of the federal late-term abortion ban, the government has asked hospitals and physicians for patient records.

The Dept. of Justice says it needs the medical charts to "test" physicians' claims that intact dilatation and extraction procedures are medically necessary. Physicians and hospitals argue that giving up the records is a violation of patient confidentiality.

About a dozen physicians, the National Abortion Federation and Planned Parenthood last year sued the government in several federal courts to stop a new law commonly known as the "Partial-Birth Abortion Ban Act" from taking effect. They argue that the procedure is sometimes medically necessary.

To defend itself in that suit, the government says, it must view medical records of physicians who say the procedure is sometimes medically necessary. It is asking for the records in a way that keeps patient information private, said Justice Dept. spokeswoman Monica Goodling.

"The medical records sought will not contain any patient names, Social Security numbers, addresses, phone numbers or other identifying information," she said. The government asks for patients' state of residence.

"Because the doctors and hospitals are not to provide patient names or identifying information, a review of a doctor's general experience will not violate any privacy rights," she added.

This request is not uncommon, she said. When the government defends health care laws or prosecutes health care fraud, it requests information involving patients who may not be directly involved with the lawsuit.

"The Justice Dept. commonly requests this information in a way that protects patient privacy," she said.

But some hospitals, physicians and women's rights organizations say the government does not have the right to the information.

"To assert that the government has an unfettered right to root around in our private medical records is beyond appalling and brings to mind the basic question in the debate over a woman's right to choose -- who decides?" said Kate Michelman, president of NARAL Pro-Choice America, a national group that advocates abortion rights.

Courts weigh in

So far, opinions are divided. U.S. District Judge Richard Conway Casey in New York said in February that physicians and hospitals that received government subpoenas are going to have to "do whatever it takes to produce hospital records." The Justice Dept. requested information from at least six facilities.

"Hear me out loud and clear, I will not let ... the doctors hide behind the shield of the hospital. Is that clear?" Casey said, according to a transcript of the Feb. 5 hearing. "You cannot prevent this discovery being accomplished by stalling this or by hiding behind ... the shield of the hospital."

But the U.S. District Court in Chicago, where Northwestern Memorial Hospital filed a motion to quash the government's subpoena requesting patients' records, ruled that the hospital did not have to turn over the information. Chief District Judge Charles P. Kocoras said Illinois privacy laws are stricter than the Health Insurance Portability and Accountability Act of 1996 and prevent the hospital from having to produce the medical records. Illinois courts have found that the privacy protection applies even if the patients' names and identification numbers are redacted.

While the state law doesn't specify the type of medical information subject to protection, Kocoras said, "it is only reasonable that the privilege should not be diluted in a case involving procedures as sensitive and personal as late-term abortions."

"An emotionally charged decision will be rendered more so if the confidential medical records are released to the public, however redacted, for use in public litigation in which the patient is not even a party," he wrote. "Patients would rightly view such disclosure as a significant intrusion on their privacy."