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2004-02-13

Ashcroft Seeks Hospital Abortion Records

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The Justice Department is demanding that at least six hospitals in New York City, Philadelphia, Ann Arbor and other cities turn over hundreds of patient medical records on certain abortions performed there. We speak with the president of the National Abortion and Reproductive Rights Action League. [includes transcript]

The Justice Department is demanding that at least six hospitals in New York City, Philadelphia, Ann Arbor and other cities 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 anti-abortion groups call partial-birth abortions. A group of doctors at hospitals nationwide have challenged the law, which was passed last November, arguing that it bars them from performing medically needed abortions.

Justice Department lawyers say they want to examine the medical histories of dozens of patients from the last three years to determine if certain abortions were medically necessary.

Hospital administrators say the demands violate the privacy rights of their patients. This has resulted in divided interpretations from federal judges in recent days about whether the Justice Department has a right to see the files.

A federal judge in New York 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. He said, "I will not let the doctors hide behind the shield of the hospital."

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.

The judge said 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 Justice Department says it is considering an appeal.

  • Kate Michelman, President of the National Abortion and Reproductive Rights Action League ( NARAL).

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We’re joined by Kate Michaelman who is the president of NARAL, National Abortion and Reproductive Rights Action League. Welcome to Democracy Now!

KATE MICHAELMAN: Good morning.

AMY GOODMAN: We tried to get the justice department on, but they refused. You can talk about the latest court ruling?

KATE MICHAELMAN: Oh, my, yes. I would be happy to. I guess, you know, I’ve been working as an advocate for reproductive freedom and choice for 25 to 30 years professionally and personally. I guess I’m — I never fail to be shocked at the developments that occur as we struggle to retain, — as women, — struggle to retain our right to medical privacy and freedom of choice. But, I think Americans will be absolutely shocked to learn that the Bush administration has taken the position that there is no right to medical privacy. To assert that the government has an unfettered right to root around in our private medical records, I think, is beyond appalling. It demonstrates how far President Bush, John Ashcroft, and the Justice Department will go in defending this law that the president signed last year, becoming the nation’s first ever president to criminalize abortion. Their rationale for exposing the private medical records of women who needed this medical care is to defend their position that these abortion procedures are not medically necessary. It’s a gross invasion of our privacy. I don’t think any good thinking American would deny that our medical records should be kept private and that women’s lives and their medical care should not be made into a, you know, into a national football game. It’s just extraordinary to me. It’s extraordinary.

JUAN GONZALEZ: Well, Kate Michaelman, the administration argues that they are not going to be releasing the individual records of people; they just want to be able to see the case histories. How do you respond to that, that line of defense of this action?

KATE MICHAELMAN: I think that’s — that’s — that’s a — that’s just a silly line of defense. The fact is that no one — no — I mean, these women are not on trial. Let’s remember that women have a legal right to terminate their pregnancies. They have a legal right to go to a physician and get medical advice and treatment that is — that is responsive to her medical condition. That’s a legal right. They are not criminals. And the justice department has no right to act as a prosecutor, you know, invading the records of these individual women. Whether they claim or not that they won’t release these publicly, these are individuals in a Justice Department that is hostile to a woman’s right to choose and will stop at nothing to take that right away under President Bush’s support and direction. These are individuals who will — who will have access to the most private medical — private records, an individual woman or person could have. I mean, Americans have every right to believe that their medical records are private. That is what we believe in this country, that personnel privacy is an individual and fundamental constitutional right. And that the government, you know, — the government has no business in our medical records. So, I think that’s a specious argument. I think it is a terrible development in — if these justice department officials are allowed to comb through these womens’ records. I think the majority of Americans, as they learn about this increasingly, are going to be very troubled about the government having the right to fish through private medical records and second guess medical decisions in this way, and these are trials we’re talking about here. This law that the president signed criminalizing abortion, is the first time ever that a president has criminalized a medical procedure in this country. And, it’s not just one medical procedure, this bill he signed. It covers a range of procedures, beginning in the earliest stages of the second trimester. And I mean — these are —- this law is being challenged by several organizations because we believe it is unconstitutional. The law does not even make an exception to protect women’s health. It does not respect Roe vs. Wade’s provision that women have the right to choose in the pre-viability stages of pregnancy when the fetus cannot live outside the womb of the woman and that states have a right to prohibit abortions in the post-viability stage of pregnancy -—

AMY GOODMAN: Kate Michaelman, I want to ask about the difference between the two judges in Chicago. They have thrown it out. In New York, Judge Casey has said he wants the records handed over. I want to ask, and we only have a minute here, if anyone who has the records of the hospitals in New York and in Ann Arbor and Philadelphia, if any of the chief hospital administrators or doctors are willing to go to jail and not turn it over?

KATE MICHAELMAN: Well, I do think that some doctors will hold their ground. I believe so, at great risk to, you know, their own legal status and to their provision of services. I think it’s extraordinary that the Justice Department is putting medical care professionals, physicians, in this kind of untenable situation where they have to choose between guarding the privacy of their patients, and — and — and being subject to — you know to — to incarceration. It’s an extraordinary development. For more than five years during the time when more than 20 states — you know, partial birth abortion laws have been challenged in court and invalidated, mind you. We are not aware of this kind of fishing expedition into women’s personal private medical records ever before, although — although there have been attempts that states in other matters try to invade women’s reproductive medical records.

AMY GOODMAN: I want to thank you very much for being with us. Kate Michaelman is president of the National Abortion and Reproductive Rights Action League.

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