If you want your doctor to send out your medical records, you have to sign a lengthy disclaimer, maybe more than once. Getting the records sent by fax or e-mail is often out of the question. Why all the rigmarole? Because federal privacy law treats medical information as both sacrosanct and, in the wrong hands, potentially explosive—and therefore does its best to ensure that other people don't get a peek at it.
Abortion opponents understand the sensitivity of medical privacy. Which is why they've repeatedly tried to subpoena the records of patients who visit abortion providers. In their hands, the power to request documents in the course of a lawsuit or a potential prosecution is a tool: It's a way of challenging doctors who perform late-term abortions and, perhaps, of scaring patients away from clinics. The courts have generally warded off these efforts to expose women's medical histories. But the abortion opponents keep trying because the legal wrangling itself serves their interests. Today, the Kansas Supreme Court heard arguments in a fight over access to medical records that's particularly unsettling—because this time the subpoena is coming from a grand jury run amok.
In the last decade, abortion provider Dr. George Tiller and Women's Health Care Services in Wichita, Kan., have been investigated half a dozen times. (In 2005, a patient died after having an abortion at the clinic. The medical board in Kansas cleared him of any wrongdoing, as did a grand jury.) Former Kansas Attorney General Phill Kline wanted to nail Tiller and the clinic for performing late-term abortions illegally. They tried to subpoena patients' medical records in the course of their investigation, and that effort came before the Kansas Supreme Court.
In 2006, the justices ruled that Kline couldn't simply go on a fishing expedition. Instead, before he could subpoena the patients' records, the attorney general had to show "reasonable suspicion" that Tiller and the clinic were breaking a law. The presiding judge also had to be satisfied that the attorney general was proceeding on "firm legal ground." If the judge went along with the subpoena, he had to make sure the records were redacted so that personally identifying information would not be disclosed. "The type of information sought by the State here could hardly be more sensitive, or the potential harm to patient privacy posed by disclosure more substantial," the court worried.
Kline was voted out of office. The next attorney general, Paul Morrison, looked at the evidence and decided not to prosecute Tiller on any of the 30 charges Kline had filed, saying they were "based on a political agenda." At the same time, Morrison filed 19 new misdemeanor charges. They didn't accuse Tiller of performing illegal abortions but of the far lesser offense of taking referrals from a doctor to whom he allegedly had financial ties.
Not satisfied with small-potato misdemeanor allegations, Kansans for Life turned to a new tactic—an 1887 state law that gives citizens the power to convene a grand jury if, in essence, 2 percent of the voters in a county sign a petition. Last September, the group delivered a petition with 7,857 signatures, asking the district court in the county of Sedgwick to crank up a grand jury to investigate Tiller. Time for a do-over. The grand jury issued a subpoena for the same medical records Kline had originally asked for, plus more over a period of five years, relating to a total of more than 2,000 women who'd come to the clinic 22 or more weeks pregnant. Kline said he needed the records to find out whether Tiller had performed a late-term abortion that wasn't necessary to preserve the mother's life or to prevent "irreversible impairment of a major bodily function," as Kansas law required. The judge appointed to oversee the grand jury ordered the clinic to produce the records, 50 at a time. Now that order, and the privacy interests it threatens, are back before the state Supreme Court.
The justices can knock back this subpoena by finding that the same standard of reasonable suspicion applies to a grand-jury investigation that applies to an investigation by the attorney general. In fact, given that citizen grand juries aren't subject to the ethical constraints that are supposed to rein in prosecutors, there's probably even more reason to make sure that a judge is looking over their shoulders before they pull the subpoena trigger. Reasonable suspicion isn't exactly a high bar. As the Kansas Supreme Court pointed out the first time around, criminal investigations before the phase of indictment are about figuring out whether there is probable cause—a higher legal standard—to think a crime has been committed. Before they even get to probable cause, grand juries and prosecutors can't be asked to show for certain that the medical records they're after contain the evidence they need to nab a bad guy. That would go too far, given the state's clear interest in investigating allegations of crime.
Once it has threaded the law enforcement needle, the Kansas Supreme Court will confront another layer of questions about privacy. If the personal information in the records of Tiller's patients is shorn of names, addresses, and the other details that would make the women easy to find, then what's the problem? The women's lawyers answer by pointing out that there are different kinds of threats to privacy in this case. Taking out names and addresses shields women from being identified in the obvious way. But people can still burrow into the remaining details and perhaps make a match. In a 2004 opinion in a similar case—in which the court rejected a subpoena for the abortion records of 45 women—Judge Richard Posner wrote for the U.S. Court of Appeals for the 7th Circuit about the women's legitimate fear that "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." Redacting isn't a science.
And even if it were, Posner said next, even if the women's anonymity could be guaranteed, an invasion of privacy lingers. He drew an analogy to nude pictures of a woman on the Internet, shorn of identifying details and "downloaded in a foreign country by people who will never meet her." The woman in the pictures would probably still find the pictures disturbing, and "the revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound," Posner concluded.
That takes us to another underlying question: Why allow citizens to convene grand juries with subpoena powers in the first place? Few other states have such statutes, according to Bonnie Scott Jones, the lawyer for the Center for Reproductive Rights who represented Tiller's patients in court Tuesday. Maybe Kansas should scrap what looks like a relic of frontier justice. That's the advice of a second grand jury, convened by another petition drive, led by the LIFE Coalition, to investigate Planned Parenthood. Last month, the second grand jury not only cleared Planned Parenthood but also called for a review of the 1887 law. Instead of letting abortion opponents repurpose the old law, Kansans should throw it into the dust heap.