In a case that has drawn national attention, a split federal appeals court in Chicago on Friday shot down a Justice Department bid to obtain medical records from a Chicago hospital of women who had late-term abortions.
Noting the sensitivity of the issue, the 7th Circuit U.S. Court of Appeals, in a 2-1 ruling, found that the release of the Northwestern Memorial Hospital records would invade patients’ privacy.
The government also never adequately explained why it needed the 45 patients’ records for a New York trial scheduled to start Monday, the court held in a decision written by Judge Richard A. Posner.
At oral argument earlier this week, the court noted in its opinion, “We pressed the government’s lawyer repeatedly and hard for indications of what he hoped to learn from the hospital records, and drew a blank.”
The decision upholds a ruling to quash the government subpoena last month by Chicago’s chief U.S. district judge, Charles Kocoras, though the appeals court reached its decision on different legal grounds than Kocoras.
The decision came in lightning-quick fashion for the appeals court, just three days after the three-judge panel held extended oral arguments by lawyers for Northwestern Memorial and the Justice Department. The court’s decisions typically come months after oral arguments.
Judge Ann C. Williams joined Posner in the majority opinion, while in a separate opinion, Judge Daniel A. Manion dissented from the majority’s decision, though he agreed in part with its criticism of Kocoras’ reasoning. Manion wrote in his dissent that the government should get the records, in part because removing the women’s names and other identifying information would eliminate any privacy concern on the part of the abortion patients.
The government wanted the hospital records to cross-examine doctors who are challenging the federal Partial Birth Abortion Ban Act in the New York trial. The Justice Department said it needs the records to refute the doctors’ claim that some types of abortions are necessary to preserve the health of pregnant women who have other serious medical problems.
The physicians, including Dr. Cassing Hammond, who performed late-term abortions at Northwestern Memorial and is scheduled to be an expert witness at the New York trial, argue that the abortion ban is unconstitutional because it has no health exception.
In a statement released Friday night, Northwestern Memorial said both the appeals court and the lower court ruling fundamentally concluded “that the significant intrusion into patient privacy outweighed the government’s need for these records to prove their case.”
“We are pleased with this result and the reassurance it provides to our patients,” the hospital said.
The Justice Department, in reacting to the adverse ruling, said that it would make every attempt to ensure that sensitive patient information remained private by having the hospital remove names and other identifying information from its records before their release.
But in the majority opinion, the appeals court raised concern that the patients’ identities might not be fully protected despite those safeguards.
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Some of the women might be afraid that “skillful `Googlers,’ sifting the information contained in the medical records concerning each patient’s medical and sex history, will put two and two together” and reveal their identities, the judges wrote.
The court compared the release of such sensitive medical records to a posting of a woman’s nude photos on the Internet–an invasion of privacy even if her name were withheld.
The judges also raised concern that Northwestern Memorial would lose the confidence of its patients if it couldn’t shield their abortion records from disclosure in court proceedings.
But the bottom line for the court was that the government was unable to show that its need for these records at trial outweighed the potential cost to patients’ privacy and the hospital’s goodwill.
“Of course, pretrial discovery is a fishing expedition and one can’t know what one has caught until one fishes,” the opinion said. But federal rules of civil procedure allow “the fish to object,” the court said, “and when they do so the fisherman has to come up with more than the government has been able to do in this case despite the excellence of its lawyers.”
The court, in its majority opinion, disagreed with Kocoras’ main point–that the Health Insurance Portability and Accountability Act (HIPPA), a 1996 federal medical privacy law, gives precedence to Illinois’ strict privacy rules.
It also rejected Kocoras’ finding that federal law has an inherent physician-patient privilege.
Manion also disagreed with the majority’s claim that the records are irrelevant to the government’s case, noting that the New York judge presiding over the doctors’ challenge to the late-term abortion law ruled that the medical records are admissible. The New York judge threatened in February that if the doctors could not produce the records, he might lift his stay preventing the law from being enforced.
Three civil rights lawsuits against the Partial Birth Abortion Ban Act filed by pro-abortion rights groups will be heard simultaneously beginning Monday in federal courts in New York, San Francisco and Lincoln, Neb. It will be one of the most closely watched abortion hearings in decades because of the broad, national implications.
The failure of the government to obtain Northwestern Memorial’s records is likely to have minimal impact on the separate decisions of three judges hearing the cases, legal observers said. Both sides will present mountains of documents and detailed expert testimony to bolster their claims in court in the coming weeks.
The suits, brought on behalf of doctors, challenge the constitutionality of a ban passed by Congress last fall on late-term abortions. Such procedures are usually performed in the second or third trimester and generally occur when women develop heart disease or a life-threatening condition.
Opponents argue the ban is too sweeping and does not take into account the status of a woman’s health. The ban resembles a Nebraska law deemed unconstitutional by the U.S. Supreme Court in 2000.