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February 2004

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Subject:
From:
Mary Coleman Howland <[log in to unmask]>
Reply To:
Choice Coalition <[log in to unmask]>
Date:
Fri, 13 Feb 2004 12:49:20 -0500
Content-Type:
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here is an article that may be of interest to all of you!
Have a good weekend.
Solidarity,
Mary



Justice Dept. Seeks Hospitalsí Records of Some Abortions

February 12, 2004
By ERIC LICHTBLAU





WASHINGTON, Feb. 11 - The Justice Department is demanding
that at least six hospitals in New York City, Philadelphia
and elsewhere turn over hundreds of patient medical records
on certain abortions performed there.

Lawyers for the department say they need the records to
defend a new law that prohibits what opponents call
partial-birth abortions. A group of doctors at hospitals
nationwide have challenged the law, enacted last November,
arguing that it bars them from performing medically needed
abortions.

The department wants to examine the medical histories for
what could amount to dozens of the doctors' patients in the
last three years to determine, in part, whether the
procedure, known medically as intact dilation and
extraction, was in fact medically necessary, government
lawyers said.

But hospital administrators are balking because they say
the highly unusual demand would violate the privacy rights
of their patients, and the standoff has resulted in
clashing interpretations from federal judges in recent days
about whether the Justice Department has a right to see the
files.

A federal judge in Manhattan last week allowed the
subpoenas to go forward and threatened to impose penalties,
and perhaps even lift a temporary ban he had imposed on the
government's new abortion restrictions, if the records were
not turned over.

But, also last week, the chief federal judge in Chicago
threw out the subpoena against the Northwestern University
Medical Center because he said it was a "significant
intrusion" on the patients' privacy.

A woman's relationship with her doctor and her decision on
whether to get an abortion "are issues indisputably of the
most sensitive stripe," and they should remain confidential
"without the fear of public disclosure," the judge, Charles
P. Kocoras, wrote in a decision first reported by Crain's
business journal in Chicago.

The Justice Department is considering an appeal.

The
department's demands for the records are still pending
against Columbia Presbyterian Medical Center, Weill Cornell
Medical Center and St. Luke's-Roosevelt Hospital Center,
all in New York City; the University of Michigan medical
center in Ann Arbor; and Hahnemann University Hospital in
Philadelphia. At least one undisclosed hospital also
appears to have been served with a subpoena, officials
said.

Judge Richard Conway Casey of Federal District Court in
Manhattan, who issued an order in December enforcing the
government subpoenas, said at a hearing last week that the
department had good reason to want the records, and he
threatened to sanction the opposing lawyers in the case
unless the hospitals turned them over.

"I will not let the doctors hide behind the shield of the
hospital," Judge Casey said, according to a transcript of
the hearing. "Is that clear? I am fed up with stalls and
delays."

Judge Casey issued a temporary injunction in November
preventing the government from enforcing the Partial-Birth
Abortion Ban Act. He said last week that he was prepared to
lift that injunction and possibly clear the way for the
government to enforce the law if the records were not
produced.

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."

It is still unclear exactly how many patients would be
affected by the subpoenas - if they are enforced - because
the affected hospitals are still reviewing their case
files. Officials said several dozen women who have obtained
abortions could be affected.

A lawyer for the National Abortion Federation, a plaintiff
in the lawsuit before Judge Casey, told him that, over all,
"many hundreds" of medical documents would be covered. The
federation is a trade organization that represents abortion
providers.

The University of Michigan, which initially refused to turn
over the subpoenaed records because of privacy concerns,
said it was discussing ways of deleting enough identifying
information to comply with the subpoena. Other hospitals
said they remained concerned.

Under the department's subpoena, "there still is enough
identifiable information in these records to identify these
people," said Kelly Sullivan, a spokeswoman for
Northwestern.

Advocates for abortion rights said they were particularly
troubled by the subpoenas because of Attorney General John
Ashcroft's history as an outspoken opponent of abortion in
his days in the Senate.

"This notion of John Ashcroft poring over medical records
in a fairly unprecedented type of fishing expedition is
exactly the type of privacy invasion that worries people,"
said David Seldin, a spokesman for Naral Pro-Choice
America, an abortion rights organization. "The government
just shouldn't be involving itself in private medical
decisions and second-guessing doctors' ability to advise
their patients properly."


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