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Patient privacy and abortion law

John Ashcroft's Justice Department has issued subpoenas for medical records at several hospitals in an attempt to enforce the ban on "partial-birth" abortions.

Some of the hospitals have challenged the subpoenas in court, with a federal judge in Manhattan demanding that the records be produced, and another federal judge in Chicago throwing out the subpoenas on grounds that they impermissibly intrude upon patients' privacy.

Sheila M. Gowan, a Justice Department lawyer, told Judge Casey that the demand for the records was intended in part to find out whether the doctors now suing the government had actually performed procedures prohibited under the new law, and whether the procedures were medically necessary "or if it was just the doctor's preference to perform the procedure."

The department said in its unsuccessful effort to enforce the Northwestern subpoena that the demand for records did not "intrude on any significant privacy interest of the hospital's patients" because the names and other identifiable information would be deleted.

Citing federal case law, the department said in a brief that "there is no federal common law" protecting physician-patient privilege. In light of "modern medical practice" and the growth of third-party insurers, it said, "individuals no longer possess a reasonable expectation that their histories will remain completely confidential."

Actually, there never has been an expectation that medical histories would remain completely confidential. The question was always, how confidential will they be? Perhaps what the Department meant to say was that in the past, disclosures have been allowed in limited cases for the sake of improving patient care, or for preventing imminent harm to third parties. Here, the disclosures seem not to be for this purpose. Here, the Justice Department is proposing to review the "medical necessity" of the treatments rendered. This does seem to deviate from past practices.

Completely anonymous disclosures are also commonplace for statistical research and quality-control. But it doesn't seem that the subpoenas are requesting this kind of anonymous release of information. The justice department wants to know the names of the physicians who may have performed certain procedures. If there were reasonable grounds for believing that the physicians were harming their patients, perhaps the disclosures would be justified. But it doesn't seem like that's the case here; the Justice Department only asserts that the procedures might have been the "doctor's preference."

My first impression is that the "Chicago rule" of throwing out these subpoenas is the only defensible one. . .


If "partial-birth" abortions are illegal unless performed for the health of the mother, isn't it quite relevant that doctors are perfoming the procedure out of personal preference, and not to protect the health of the mother?

Whoops! I just noticed that I said "that doctors..." and not "if doctors...." I meant the latter.

I think the wrinkle with this law is not its regulation of a procedure "except where it is for the health of the patient." Abortions don't differ much in this respect from most other surgical procedures. In these cases, patient confidentiality customarily trumps the state's inquiry into the purpose of the procedure. So long as the patient and physician came to some sort of agreement that it was desirable, the state has no grounds for violating the confidentiality of the patient's records.

Abortions are different, of course, because there may or may not be a third person's interest to protect. It all depends on whether or not you think the fetus is a third person. . .