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Fritz Feds

Friday, March 26, 2004

Seventh Circuit rules against Justice Department on abortion records

How Appealing reports this decision today by a split three judge panel of the Seventh Circuit.

Judge Richard Posner wrote the majority opinion. Here are the excerpts that Howard Bashman quotes on How Appealing:

The natural sensitivity that people feel about the disclosure of their medical records--the sensitivity that lies behind HIPAA--is amplified when the records are of a procedure that Congress has now declared to be a crime. Even if all the women whose records the government seeks know what "redacted" means, they are bound to be skeptical that redaction will conceal their identity from the world. This is hardly a typical case in which medical records get drawn into a lawsuit. Reflecting the fierce emotions that the long-running controversy over the morality and legality of abortion has made combustible, the Partial-Birth Abortion Ban Act and the litigation challenging its constitutionality--and even more so the rash of suits around the country in which the Department of Justice has been seeking the hospital records of abortion patients--have generated enormous publicity. These women must know that, and doubtless they are also aware that hostility to abortion has at times erupted into violence, including criminal obstruction of entry into abortion clinics, the firebombing of clinics, and the assassination of physicians who perform abortions.

Some of these women will be afraid that when their redacted records are made a part of the trial record in New York, persons of their acquaintance, or skillful "Googlers," sifting the information contained in the medical records concerning each patient's medical and sex history, will put two and two together, "out" the 45 women, and thereby expose them to threats, humiliation, and obloquy.


Even if there were no possibility that a patient's identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.

Perhaps I will actually read the decisions in this case and offer a more educated response later. All I will say now is that I hope Judge Posner made a more detailed attempt to establish that these fears were reasonable than he does in this quote.


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