Abortion and medical privacy in Kansas.

The law, lawyers, and the court.
April 8 2008 6:11 PM

Record Shopping

The antiquated Kansas law that abortion opponents are using to pry into women's medical histories.

Kansans for Life protest outside the Kansas Supreme Court. Click image to expand.
Kansans for Life protest outside the Kansas Supreme Court

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.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

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.

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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.

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