New York Times Examines Bush Administration Position on Medical Privacy

The New York Times on Saturday examined the Bush administration's "new, more limited view" of medical privacy rights, as it attempts to force some hospitals and clinics to turn over records pertaining to abortions to defend a law (S 3) banning so-called "partial-birth" abortions. Some doctors and clinics have said that the law prevents them performing certain medically necessary abortions, and to defend against those charges, the Department of Justice began to subpoena medical records from some public hospitals and six Planned Parenthood affiliates throughout the country. According to DOJ, the records are needed to prove that partial-birth abortions are "almost never medically necessary," the Times reports. However, what began as a "fairly modest government effort to obtain records appears to have ballooned into a systematic effort in courts around the country to define the limits of medical privacy," the Times reports. In court papers filed in February that sought abortion records from Planned Parenthood clinics in California, Kansas, Missouri, New York City, Pennsylvania and Washington, DOJ said that federal law "does not recognize a physician-patient privilege." In another abortion case, the DOJ said that patients "no longer possess a reasonable expectation that their histories will remain completely confidential." Further, the department contends that the 1996 Health Insurance Portability and Accountability Act, which includes provisions regarding medical privacy, "is no obstacle to its efforts to obtain abortion records," the Times reports. In addition, DOJ maintains that federal rules allow for the disclosure of medical records in judicial proceedings as long as there are safeguards to protect patients' names.

According to the Times, the Bush administration's view of medical privacy is a "sharp departure from [the administration's] past insistence on the sanctity of medical records." The Times reports that the position "has broad implications beyond abortion" because the government "may be more aggressive in seeking records from hospitals, insurance companies and other businesses in criminal, civil and administrative cases." San Francisco Federal District Judge Phyllis Hamilton ruled on Friday that forcing a public hospital in the city to turn over abortion records could "dissuade some from seeking treatment," the Times reports. "There is no question that the patient is entitled to privacy and protection," Hamilton said, adding, "Women are entitled to not have the government looking at their records." Rep. Edward Markey (D-Mass.), co-chair of the Congressional Privacy Caucus, said that the records sought by DOJ will have information that could identify patients. "How many hundreds of women, or thousands, will have the frightening experience of their medical records being handed over to the Justice Department as part of a fishing expedition?" Markey said. Rep. Nita Lowey (D-N.Y.) said, "This administration claims to have taken great pride in adopting regulations aimed at ensuring the sanctity and privacy of medical records. But in an attempt to defend the so-called partial-birth abortion ban, it seems to have lost sight of its promises." Trent Duffy, a spokesperson for the White House, said the Bush administration is "strongly committed to medical privacy," adding that the subpoenas are "completely consistent" with federal privacy rules. Monica Goodling, a DOJ spokesperson, said, "We are respecting patient privacy by having hospitals delete any information that identifies specific patients" (Pear/Lichtblau, New York Times, 3/6).