Doctors challenge abortion subpoenas

WASHINGTON -- A group of physicians and hospitals is fighting Justice Department subpoenas for confidential medical records of patients who have undergone a type of late-term abortion, part of an escalating legal battle over a new federal ban on the procedure, court records and officials said.

The dispute resulted in contradictory orders last week from federal judges in Chicago and New York over whether the records may be released. The outcome of the dispute could determine whether federal officials will soon be able to widely enforce the Partial Birth Abortion Ban Act, which was signed into law on Nov. 5 but has been restricted by several temporary restraining orders issued in federal courts.

In a lawsuit filed by the National Abortion Federation and seven physicians against Attorney General John D. Ashcroft, Justice Department attorneys have demanded patient records from hospitals used by the doctors involved, records show. Government lawyers contend that such requests are common in many areas of civil law, and that patients' names and other identifying information can be redacted from the files before they are turned over.

But a federal judge in Illinois last week blocked the government from enforcing a subpoena against Northwestern Memorial Hospital in Chicago, ruling that the demand violated state and federal privacy laws. Hospitals in Michigan, New York, and Pennsylvania have also refused to comply because of patient privacy concerns, according to records and officials.

The standoff so angered a New York judge that he threatened last week to lift an injunction barring enforcement of the abortion ban against the plaintiffs in the case, who represent half of the nation's abortion providers.

US District Judge Richard Conway Casey of the Southern District of New York told attorneys that the physicians had opened themselves to such subpoenas by filing the lawsuit, and that the records request would not threaten patient privacy because personal information would be blocked out.

"I will not -- hear me out loud and clear -- I will not let . . . the doctors hide behind the shield of the hospital," Casey said on Feb. 5, according to a transcript. "Is that clear? I am fed up with stalls and delays. . . . The information relevant to this case will be produced. Otherwise, I will entertain whatever actions the government wishes to seek."

On the same day, however, US Chief District Judge Charles Kocoras of the Northern District of Illinois quashed the government's subpoena of records at Northwestern Memorial, calling the request "a significant intrusion" of patients' privacy that would provide "little, if any, probative value" to the government's case.

Kocoras ruled that strict Illinois privacy restrictions trump disclosures allowed by federal law, and that the subpoena would "require Northwestern to disclose medical history information" that could be used to identify patients.

"American history discloses that the abortion decision is one of the most controversial decisions in modern life," Kocoras wrote. "An emotionally charged decision will be rendered more so if the confidential medical records are released to the public, however redacted, for use in public litigation in which the patient is not even a party."

The law at the heart of the court fight bans a controversial abortion procedure, generally performed in the second or third trimester, in which the fetus is partially delivered. Proponents say the procedure is necessary in some cases to preserve the life or health of the mother, but opponents, who call it "partial birth" abortion, describe it as barbaric.

The procedure was relatively rare, with 2,000 to 2,200 performed annually before the ban, according to various estimates. That number represents about 0.17 percent of total abortions annually.

Kocoras was appointed to the bench in 1980 by President Carter. Casey, the judge in New York, was appointed in 1997 by President Clinton. In issuing his injunction in November, Casey predicted that the abortion federation and the other plaintiffs would win their case.

Justice Department spokeswoman Monica Goodling said the government was reviewing the Kocoras ruling, but declined to comment further. Sheila Gowen, an assistant US attorney, told Casey at the Feb. 5 hearing that "the government is not interested certainly in the private names and addresses and Social Security numbers of these patients. That is not the purpose here."

Representatives for the plaintiffs, including the abortion federation and the American Civil Liberties Union, also declined to discuss the case. "We are unable to comment because of ongoing litigation," federation spokeswoman Jennifer Helburn said.

Daniel Solove, an information privacy expert at Seton Hall Law School, said the subpoena fight reflects the uncertain legal terrain surrounding medical privacy issues, especially because a new federal law -- the Health Insurance Portability and Accountability Act (HIPAA) -- outlines boundaries that frequently conflict with state laws.

"Medical information is typically understood as some of the most private things maintained about people," Solove said. "But HIPAA basically allows the government to obtain medical records with a subpoena or court order in quite a number of circumstances."