Ashcroft Terrorizes New York Doctors
by Sharon Lerner
(Village Voice)
Attorney General John Ashcroft has entered into a bitter battle with doctors who perform abortions in New York. In an unprecedented foray into an area usually protected by medical privacy laws, the federal government's top lawyer—who also happens to be a fervent opponent of abortion—is demanding women's confidential medical records from doctors at two local hospital centers. So far, hospitals and doctors have not turned over the documents.
The Justice Department has subpoenaed voluminous material, including particularly sensitive patient information, according to documents obtained by the Voice. In one case, Ashcroft demanded that a doctor supply the records of patients who have had a certain abortion procedure-even when their fetuses suffered from chromosomal abnormalities and diseases that would have killed them. The attorney general also asked the doctor to provide the names of any companies that funded research related to the method, as well as the names of all colleagues who performed the abortion technique in the past five years.
The requests stem from lawsuits challenging the so-called "Partial Birth Abortion Act," which abortion rights groups filed in early November and which are scheduled to go to trial on March 29. Proponents of the law, which has not been enforced because of the suits, say it is aimed only at "D and X," an abortion method performed in the second or third trimester of pregnancy. But, in the pending suits, lawyers for individual doctors, the National Abortion Federation, and the American Civil Liberties Union argue that the law is broad enough to outlaw several abortion methods used after the 14th week of pregnancy to protect women's lives and health. In a mid-February press conference, Sheila Gowan, a Justice Department lawyer, said the requested information was required to determine whether the abortions are ever medically necessary.
And so began the war of medical records, with federal marshals dispatched with subpoenas to at least five hospitals nationwide, including Columbia Presbyterian Medical Center and New York Weill Cornell Medical Center, which are both part of the New York Presbyterian health care system, and St. Luke's Roosevelt Hospital Center in New York. On February 24, the marshals descended on Planned Parenthood in New York City and five other locations, demanding patient records there.
"It was like in the movies," said one employee of Planned Parenthood of New York City.
For doctors, patients, and medical privacy advocates, the skirmishing over records may seem like a horror film. And, though the outcome of the lawsuits will affect the entire nation, New York City is proving center stage for the dispute. While three federal courts are hearing similar challenges in different parts of the country, only one judge—Richard Conway Casey in Manhattan, who is presiding over a challenge brought by the National Abortion Federation—has so far allowed the Justice Department to proceed with its information hunt. In Chicago, federal judge Charles Kocoras refused the government's request for patient records from Northwestern Memorial Hospital, calling it "a significant intrusion" on patient privacy. And, on Tuesday, a federal judge in San Francisco ruled that records from Planned Parenthood could not be introduced in trial, forcing the Justice Department to drop its effort to get them.
New York's Judge Casey has not only allowed the Justice Department's demand for records, but has also threatened to lift the injunction on the abortion law and forbid the physicians from testifying in the trial unless they comply with the attorney general's requests. Doctors will likely have a hard time satisfying Casey, though, not least because of the extraordinary amount and delicate nature of the information requested.
Indeed, a subpoena filed on December 22 demanded that a doctor at New York Presbyterian Hospital identify "all persons to whom you have taught" the D and X method as well as "all persons who have started using and teaching" it in the last five years. The subpoena also called for the medical record numbers of the "at least 50" women who had undergone such abortions after 19 weeks of pregnancy, as well as the records of women who had had such abortions because their fetuses had trisomy 18, a severe genetic disorder from which the vast majority of affected infants die in their first year of life, or anencephaly, a brain defect that results in death before or very soon after birth.
Though the Justice Department has offered repeated assurances it would strike names, addresses, Social Security numbers, and other identifying markers from the record, no hospital has yet released the information. In a February 13 memo, James Frank, an attorney for New York Presbyterian Hospital, objected to the request, arguing that the files are protected by federal and state privacy laws. Hospitals in Pennsylvania and Michigan have also balked at the subpoenas, insisting that disclosing records violates patients' privacy. Lawyers for New York Presbyterian have also said doctors should only have access to records in order to provide patient care.
Others say the records being forcibly collected may have little bearing on the question of whether a particular abortion is medically necessary. "When you dictate [a file of an abortion patient], you rarely dictate why you choose to do one type of procedure over another-you just say what you did," explains Rachel Masch, medical director of the reproductive choice service at New York University Hospital. "So I don't know why they think there would be anything of relevance in that dictation." Challenges of similar state bans on abortions were decided without subpoenaing or probing individuals' medical files.
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Insisting there is no scientific purpose for subpoenaing these medical records, some women's health advocates say the attorney general's request amounts to harassment. "One strongly suspects that the purpose is to make life extremely unpleasant for these physicians and these institutions," says Wendy Chavkin, chair of the national doctors' organization Physicians for Reproductive Choice and Health. "The overzealous handling of this case communicates to physicians at large that life is going to be really difficult if you go forth with providing this service."
Of particular concern to Chavkin is the demand that doctors provide the names of their colleagues—including those not cited in the original suit. "That is straight from Joe McCarthy's handbook," says Chavkin, referring to the scare tactics the U.S. senator used in his 1950s witch hunt for Communists. "Ashcroft is clearly bent not only on chilling the provision of abortion but also on creating a climate of fear among doctors."
On that front, at least, the attorney general seems to be having some success. "I'm afraid that by limiting physicians' alternatives, patient care will suffer," says Masch, who works at both Bellevue and NYU hospitals. Doctors also have reason to fear for themselves, since the law would allow convicted doctors to be jailed as well as sued by the "father" and "maternal grandparents" of the fetus.
To be protected by the temporary injunction on the abortion ban, doctors need to be either individual plaintiffs in one of the suits or members of a plaintiff organization—so Masch joined the National Abortion Federation. The Health and Hospitals Corporation, the agency that represents the city's 10 public hospitals, including Bellevue, also joined the federation as an institutional member, according to a corporation spokesperson. As a result, the handful of doctors who perform contested abortions at city hospitals will, at least for now, be protected from prosecution. And, with city hospitals having joined the fray, the stakes in New York's mounting standoff over abortion are that much higher.
Sharon Lerner is a senior fellow at the Center for New York City Affairs at New School University.
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