Abortion Records Safe From Feds, For Now

by Cynthia L. Cooper

(WE) NEW YORK -- The technician performing the sonogram on Ashley Kutach during the 20th week of her pregnancy nearly two years ago became strangely quiet. "The technician wasn't saying 'Oh, look the baby's waving.' She kept going back to the brain," said Kutach, who lived in Austin, Texas, with her husband and their 1-year-old son.

The couple soon heard a sad prognosis of the severe physical and mental abnormalities and, after much reflection, decided to terminate the pregnancy. "You never know until you are sitting in this position. It was the best decision for our family. I couldn't bring my daughter into the world like that," she said.

Kutach is willing to talk about the abortion she had in a Houston hospital, even willing for her name to be used in an article. But she would not be willing to open her medical records to a government scrutiny or subpoena. "There are some things that should be kept private," she said.

Records of abortions like hers are safe for now. An unprecedented legal battle waged since November in five states and seven separate federal courts, including two at the appellate level, has finally turned back the tide of Justice Department demands for women's medical records. But, by no means, is the match over.

Beginning in late December, 2003, the U.S. Justice Department, headed by Attorney General John Ashcroft, issued subpoenas for hundreds of medical records of women in similar situations as Kutach at 12 medical facilities throughout the nation, as part of its effort to save a federal abortion ban from three simultaneous lawsuits challenging the ban's constitutionality.

The first federal law criminalizing abortion procedures was signed by President George W. Bush last November in a huddle of male legislators and religious dignitaries. It declares that a doctor can be arrested for using surgical procedures that the law calls "partial-birth abortion," a non-medical term. The law does not include a safeguard for women's health, as the Supreme Court said would be required for such an abortion ban to meet constitutional standards.

Eleven doctors, a professional association and Planned Parenthood groups immediately brought lawsuits in federal courts in New York, Nebraska and California. A central argument in all three cases is that the law has no health exception.

At the outset, all three federal courts temporarily blocked the ban from taking effect until trials could be held on constitutionality.

Ashcroft responded by declaring in a press release that the Justice Department would "devote all resources necessary" to "vigorously" maintain the ban. The Justice Department did not respond to requests for comment for this article.

The department's annual budget is $21 billion. The ban is being challenged by nonprofit organizations and practitioners who are represented by nonprofit legal organizations.

Ashcroft's office demanded the health records of patients treated in the medical centers or by the doctors challenging the government ban or testifying against it. In arguing that the subpoenas should be honored, the Justice Department asserted that the medical records were needed to cross-examine doctors who say that the law could interfere with a woman's health.

"There is a chilling effect. The women were not parties to the case. They had no indication that their records could be used for anything other than their health care," said Emily Stewart, a policy analyst at the Health Privacy Project, a nonprofit organization in Washington, D.C.

Most of the health care providers resisted handing over the documents.

"We would never release a single medical record and we would do everything to maintain our clients' confidentiality and privacy," said Joan Malin, executive director of Planned Parenthood of New York City.

The subpoena demanded "all records of surgical abortions 20 weeks lmp (last menstrual period) and later that were performed" at the organization's facilities.

Litigation grew in complexity because some subpoenas were filed or challenged in disparate courts with jurisdiction over the targeted doctors or facilities. Judge Phyllis Hamilton in San Francisco refused the government's demands for records from six Planned Parenthood clinics. Another judge followed suit in Philadelphia. A Michigan judge ordered the University of Michigan Hospital to turn over medical records with the names removed, but the hospital returned empty-handed, having no records that fell within the criteria. St. Luke's-Roosevelt Hospital in New York also reported it had no records that matched the request.

A federal district judge in Chicago refused to order Memorial Hermann Northwest Hospital to release the medical files of Dr. Cassing Hammond, a doctor testifying against the ban. Ashcroft's office appealed immediately to a three-judge panel of the U.S. Seventh Circuit Court of Appeals.

Judge Richard Posner, a widely respected conservative jurist, chastised the government in his March 26 opinion.

The government's "motives in seeking individuals' medical records remain thoroughly obscure." Judge Posner wrote in a 2-1 opinion. "The natural sensitivity that people feel about the disclosure of their medical records... is amplified when the records are of a procedure that Congress has now declared to be a crime." Even if the names and identities of abortion patients were eliminated, "there would be an invasion of privacy," Posner ruled. (Judge Posner used the word "procedure" to refer to the abortion ban, although most experts agree that the language of the law bans more than one abortion practice.)

After a flurry of hearings in late April, the U.S. Second Circuit Court of Appeals referred positively to Posner's opinion and blocked an order of contempt against New York-Presbyterian Hospital for refusing to comply with a subpoena at its two large medical centers.

On April 26, the Justice Department withdrew its subpoena request.

"It seems like harassment," said Susan Low Bloch, a professor of constitutional law at Georgetown University Law Center, of the subpoenas. "The harm to the women could be so dramatic and the government's need doesn't seem very impressive."

Still to be decided is the fate of the federal ban.

"We have unbelievably strong arguments, and also Supreme Court precedent," said Louise Melling, director of the Reproductive Freedom Project of the American Civil Liberties Union, which is suing in New York to stop the law from taking effect on behalf of the National Abortion Federation and seven doctors. More than 20 courts have rejected similar state laws.

In fact, a state law using the same terminology was rejected as unconstitutional by the U.S. Supreme Court in 2000. The court said, in a 5-4 decision, that the unclear language would make crimes out of safe abortion practices commonly used after the twelfth week of pregnancy and did not take into account a woman's health needs.

"The difference this time around is that the Justice Department has been fighting it much more aggressively. Just witness the fight over medical records," said Roger Evans, senior director of public policy, litigation and law for Planned Parenthood Federation of America. The federation previously went to court on a half-dozen similar state bans.

Decisions on the core of the case are still to come. The San Francisco court, where a trial on the constitutionality of the ban is complete, may issue an opinion as early as May. In Nebraska and New York, where final arguments are still pending, the decisions may arrive in June.

Federal district judge Richard Kopf in Nebraska, who previously threw out a similar state law, commented in court, "The question really is, did Congress really care about whether this was safe or unsafe?"

It is this very question that may propel the cases through another year of appeals. The losing parties in each case -- government or health care practitioners -- can seek a review in the federal circuit courts in their regions. Only after those reviews are complete can an appeal be made to the U.S. Supreme Court, which is not required to accept it. If the circuit courts all agree that the ban is unconstitutional, the Supreme Court will probably refuse the case, said Prof. Bloch.

Should it reach the Supreme Court, the likely issue will be whether "findings" by Congress can override Supreme Court precedent or dictate medical practices, said Eve Gartner, a lawyer with Planned Parenthood Federation of America.

And, noted Gartner, whether an appeal is pursued at all may depend on who holds the office of Attorney General, an appointee of the President, after the election in November.