Attacking privacy.

Byline: The Register-Guard

Attorney General John Ashcroft must be delighted. He has found a case that lets the Justice Department combine his contempt for personal privacy with his deep-seated opposition to abortion.

In response to a lawsuit challenging the constitutionality of the Partial Birth Abortion Ban Act of 2003, Justice Department lawyers have subpoenaed hundreds of patient medical records associated with late-term abortions performed at a half-dozen hospitals in New York City, Philadelphia, Chicago and elsewhere.

Ashcroft claims the records are needed to establish the circumstances behind the abortions performed by the seven physicians who are plaintiffs in the lawsuit, because the plaintiffs may argue that the procedures were medically necessary. In reality, the tactic is a bald-faced effort to intimidate the doctors who filed the lawsuit. Its more sinister effect is to send a signal to women who seek abortions that their private medical records can be used in public lawsuits - even when the patients themselves are not parties in the suits.

Thank goodness the chief federal judge in Chicago quashed the subpoenas served on Northwestern Memorial Hospital, citing violations of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and Illinois' medical privacy law. But his ruling applies only to the Illinois records and is supported by a state law that is even stricter on medical privacy than HIPAA.

A federal judge in New York allowed the subpoenas to go forward last week. Hearings are pending in other cities because hospitals, citing privacy concerns, are reluctant to release the records.

As well they should be. Justice Department assurances that "no patient will be linked to any medical information contained in the records" strain credulity. In the Northwestern case, Ashcroft demanded the records of 40 of plaintiff Dr. Cassing Hammond's patients who had received late-term abortions within the past two years.

Forty women, one doctor, one hospital, two years. Begins to narrow the field a bit, doesn't it?

Fortunately, U.S. Chief District Judge Charles Kocoras recognized Ashcroft's effort as a blatant - and unnecessary - governmental intrusion on the privacy of the doctor-patient relationship.

"An emotionally charged decision (to have an abortion) 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," Kocoras wrote in a 16-page decision. "Patients would rightly view such disclosure as a significant intrusion on their privacy."

The intrusion is all the more egregious for its irrelevance, Kocoras said. There are plenty of other ways to challenge Dr. Hammond's credibility and expertise that don't involve any invasion of patient privacy.

"The balance of harms resulting from disclosure severely outweighs the loss to the government through non-disclosure," Kocoras said.

No matter what your position on intact dilation and extraction - the medical name for the procedure opponents call partial-birth abortion - everyone loses if the Justice Department is allowed to undermine the privacy of personal medical records.