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jurisprudence: The law, lawyers, and the court.

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

By Emily Bazelon
Posted Tuesday, April 8, 2008, at 6:11 PM ET

(Continued from page 1)

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 7^th 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.