Ashcroft subpoenaed the medical records of physicians there and at several other hospitals in response to a suit brought against him by the physicians and the National Abortion Federation challenging the constitutionality of the Partial Birth Abortion Act of 2003 (National Abortion Federation, et. al. v. Ashcroft). That law bans the use of the abortion procedure known as "intact dilation and extraction," often referred to as partial-birth abortion.
But the government’s effort has raised alarm among psychiatrists—and some lawmakers—about the Bush administration’s commitment to patient privacy.
In a letter to Ashcroft, 38 members of Congress expressed outrage at the action, calling it a "fishing expedition" and "an unwarranted abuse" of federal power.
"We find the nature of this zealous and unwarranted intrusion into the most private aspects of women’s medical histories, and the challenge to the medical privacy of all Americans, an unconscionable affront to longstanding public policy protecting the privacy of personal medical records," the February 13 letter states.
As this issue went to press, the suit against Ashcroft was set to begin on March 29 in the U.S. District Court of the Southern District of New York, where the judge has ordered New York Presbyterian to turn over records.
Subpoenas have been filed in other states where hospitals have the medical records of physicians involved in the suit. Judges in two of those states—Illinois and California—quashed the subpoena requests that had been issued to Northwestern Memorial Hospital in Chicago and San Francisco General Hospital.
"When contrasted with the potential loss of privacy that would ensue were these medical records used in a case to which the patient was not a party, the balance of harms resulting from disclosure severely outweighs the loss to the government through nondisclosure," said U.S. Chief District Court Judge Charles Kocoras in the Illinois ruling.
The government is appealing that decision. Requests for medical records are also pending against Hahnemann University Hospital in Philadelphia and the University of Michigan Health System in Ann Arbor.
In a motion filed in January with the U.S. District Court for the Northern District of Illinois Eastern Division, the government stated, "In light of modern medical practice and third-party payers, individuals no longer possess a reasonable expectation that their histories will remain completely confidential."
Also in that brief, as well as in other court documents that the Justice Department gave Psychiatric News, the government has consistently held that no physician-patient privilege exists in federal common law. It has stated that the protections against disclosure of private health information in the Health Insurance Portability and Accountability Act of 1996 (HIPAA) do not apply to the subpoenaed medical records.
Supporters say the government needs the records to assess claims that partial-birth abortion is sometimes medically necessary.
"In presenting a sound and aggressive defense of the national ban on partial-birth abortion, the government must be permitted to subpoena medical records to learn critical information about the physicians who performed the abortions—not the patients who received them," said Jay Sekulow, chief counsel of the American Center for Law and Justice, a conservative public-interest law firm.
But critics say the government’s position is a startling and disturbing reversal of fortune for patient privacy, despite the government’s insistence that identifying information in the requested medical records can be removed to protect the confidentiality of the patients.
"Though the Justice Department has stated its willingness to accept thoroughly de-identified patient medical records, this does nothing to allay our deep concerns about the aggressive efforts of the attorney general to seek hundreds of medical records," APA President Marcia Goin, M.D., told Psychiatric News.
"APA policy in support of reproductive rights dates back 30 years, and we have been a leader in the struggle to preserve the confidentiality of patients’ medical records. We applaud the actions of the hospitals involved that are fighting back to preserve patient privacy."
Paul Appelbaum, M.D.: "The government’s statements in defense of its behavior indicate in an extremely cynical way that privacy of medical records is dead. . . ."
Immediate past APA president Paul Appelbaum, M.D., said the government’s actions "represent an invasion of privacy, since the patients are not party to the suit and did not seek to have their records introduced in court."
Even more alarming, Appelbaum said, is the government’s approach to patient privacy generally and its statement that confidentiality of records should no longer be reasonably assumed.
"The government’s statements in defense of its behavior indicate in an extremely cynical way that privacy of medical records is dead and that no one should have any outrage or surprise over this behavior because one’s records will be used in a variety of ways anyway," Appelbaum told Psychiatric News.
He suggested that the government may be engaged in scare tactics. "I cannot help wondering if part of the intention is to intimidate women who are considering abortion into believing that the records of those abortions may at some point be accessed by the government for any reason the government thinks is worthy, and hence to dissuade them from exercising their right to have an abortion," he said.
Jeffrey Metzner, M.D., chair of APA’s Council on Psychiatry and Law, echoed similar concerns. "It is very bad for patient privacy and very alarming, especially regarding the administration’s commitment to enforcing HIPAA," Metzner told Psychiatric News.
The privacy rule under HIPAA contains a number of exceptions to privacy protections, including one that allows for use of medical records in law enforcement and by court order. Critics say those exceptions make HIPAA more loophole than law.
"From its inception we have voiced strong concern about the exceptions within HIPAA for law enforcement and judicial proceedings," Goin told Psychiatric News. "The action by the attorney general against these doctors and hospitals underscores the reality of these concerns."
Metzner said that in spite of the exceptions, the law does provide a "minimum floor" for patient confidentiality below which state laws cannot fall. And it contains a "stringency clause" stating that if state privacy laws are more stringent than HIPAA’s own rules, those state laws prevail.
"It is very discouraging to see that the Justice Department, which is supposed to be enforcing the law, is using it instead to get information," Metzner said.
The University of Michigan Health System has cited HIPAA’s stringency clause in its effort to quash the subpoena:
"[U]nder both statutory and case law, Michigan maintains that all medical information of the sort requested by the Department of Justice is absolutely protected from disclosure," the hospital asserted in court documents. "Therefore, under the preemption provision of HIPAA, because Michigan law is more stringent than HIPAA’s privacy demands, HIPAA mandates that Michigan law controls."
However, the government appears to regard the stringency clause as inoperative in federal court, where federal common law prevails.
Rebutting a similar argument put forward by Northwestern Memorial Hospital in Chicago, the government states, "[F]ederal common law governs the determination of whether any privilege immunizes the subpoenaed records from discovery. . . . Moreover, to the extent that the federal law permits disclosure where Illinois law might not, the Supremacy Clause of the United States Constitution dictates that federal law, not Illinois law, governs the Courts’ privilege determination."
The case reveals the complexity and varying interpretations of privacy laws—as well as the precarious state of privacy in an age when health information can be transmitted and used for a variety of purposes.
A number of states have laws protecting physician-patient privilege, with wide variation in the degree of protection they provide and in the number of exceptions to those protections. Under federal law, the Supreme Court recognized a psychotherapist-patient privilege in the 1996 case Jaffe v. Redmond.
But that decision has not been interpreted to extend a physician-patient privilege under federal law. As the government states in its subpoena of the medical records, there is no federal common law recognizing a physician-patient privilege that would apply in cases—such as the constitutional challenge to the Partial Birth Abortion Act—in which federal law is in question.
In the absence of a physician-patient privilege, the attorney general has sought the records "because they are central to [the government’s] ability to evaluate a testifying plaintiff’s contention that partial-birth abortion is medically necessary," according to one court document submitted by the government.
Both Metzner and Appelbaum said, however, that the tactic of seeking personal medical records to defend a legal statute is unprecedented and troubling.
Appelbaum commented, "It represents a departure from past behavior by the government in which it has typically sought to defend a statute [restricting abortion] on its merits, not by trolling through medical records."
Moreover, the absence of a physician-patient privilege in questions of federal law, while technically true, isn’t enough to justify the subpoenas, he said.
"The courts need to make an independent determination as to whether these records are material to the issue at hand and, if they are, whether introducing them is likely to be more harmful than beneficial to the process," Appelbaum said. ▪