Abortion records are just about the most sensitive medical record created. Women who have had an abortion often fiercely wish to keep that a private fact. But the Justice Department has other ideas.
In the context of defending the Partial Birth Abortion Act of 2003, the department has subpoenaed the late-term abortion records of dozens of women at a number of hospitals in major cities across the country. The department says it needs the records to determine if the procedures performed were medically necessary, and identifying information, such as names, will be stripped out. But that is simply not good enough. The department should not be permitted to go on a fishing expedition using women's privacy as chum.
It wasn't long ago that candidate George W. Bush proclaimed his support for medical privacy, promising to protect "the right of every American to have confidence that his or her personal medical records will remain private." Now, though, his Justice Department is in court declaring just the opposite. Patients "no longer possess a reasonable expectation that their histories will remain completely confidential," said one court filing. The patients whose records the department is demanding are not even parties to the case.
The department claims the subpoenas are a tactical legal decision but they have all the markings of a political ploy. Attorney General John Ashcroft is a notorious abortion foe, and he knows that women may be dissuaded from getting an abortion if they thought the records might one day be accessed by government.
The department claims it will use the records to defend the constitutionality of the ban on so-called partial birth abortions against challenges by doctors, hospitals and clinics that say the new law is damaging to women's health. Congress passed the ban without caring to make an exception for the health of the mother, and the law is under fire for that reason.
In essence, the department wants to rummage around in women's medical records in order to second guess the judgment of their doctors. And the documents the department is seeking aren't limited to just one form of late-term abortion, it also wants the records of any second-trimester abortion where there were complications, and the names of all doctors who have performed any abortions. This kind of information in the hands of Ashcroft, who as a senator from Missouri sponsored a constitutional amendment to criminalize all abortions, is inherently threatening.
Two federal judges have already raised concerns about the subpoenas, prompting the department to drop its claims against some Planned Parenthood clinics. But even with admonishments from judges, the department seems intent on going forth with its demands. A federal judge in New York has approved the subpoenas there.
Whether or not "intact dilation and extractions" are medically necessary has been debated in Congress and the courts for years. There is plenty of medical evidence, including studies, research, and expert testimony, on which to base legal arguments and conclusions. There is no need to terrorize women who have ended a pregnancy, with the specter of having their confidential medical files fall into government hands. The litigation can and should go forward without those records.
