NY Times : : Kansas Prosecutor Demands Files on Late-Term Abortion Patients
Kansas is in the news again. This time the state Attorney General, a longtime abortion foe, is demanding the complete medical files of the patients of two Kansas abortion clinics. The American Prospect has a great deal of commentary.
posted by Management at 8:46 AM
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Kansas Prosecutor Demands Files on Late-Term Abortion Patients
By JODI WILGOREN
TOPEKA, Kan., Feb. 24 - Attorney General Phill Kline, a Republican who has made fighting abortion a staple of his two years in the post, is demanding the complete medical files of scores of women and girls who had late-term abortions, saying on Thursday that he needs the information to prosecute criminal cases.
Mr. Kline emphasized statutory rape at a news conference here but also spoke obliquely of other crimes that court documents suggest could include doctors' providing illegal late-term abortions and health professionals' failing to heed a state law that requires the reporting of suspected child sexual abuse.
"When a 10-, 11- or 12-year-old child is pregnant, under Kansas law that child has been raped, and as the state's chief law enforcement official it is my obligation to investigate child rape in order to protect Kansas children," Mr. Kline said. "There are two things that child predators want, access to children and secrecy. As attorney general, I'm bound and determined not to give them either."
He declined to answer questions about his investigation.
Advocates on both sides of the abortion issue said the broad investigation, backed by a judge's subpoena, is the first of its kind in pursuit of criminal charges, although the federal Justice Department has unsuccessfully sought similar records in its defense of a ban on a procedure sometimes used to end pregnancies after the first trimester that doctors call intact dilation and extraction and that critics call partial-birth abortion.
Kansas is one of 31 states that have passed laws to ban or restrict the procedure. But Kansas does not ban it outright, allowing such abortions if women's health is endangered.
Mr. Kline's efforts to obtain records from abortion clinics follows his failed attempt last year to require the state's health workers to report any sexual activity of girls younger than 16, the age of legal consent in Kansas.
Health-care providers sued, and a federal judge granted a temporary restraining order.
Mr. Kline's new investigation could yield similar records. His effort became public this week when two clinics whose records are being subpoenaed filed a brief in State Supreme Court to block what they called a "secret inquisition" and "fishing expedition" that threatened the doctor-patient privilege and women's constitutional rights.
Noting that personal details like marital status, race, employment history and emergency contacts are in the records, lawyers for the clinics asked, "How can a woman's method of birth control or prior history of abortions or use of drugs and medications be relevant?"
The brief, which provided the first glimpse into a yearlong battle whose records have been sealed, said the laws cited as the basis for the subpoenas are one that restricts abortions after 22 weeks of pregnancy and another that requires health professionals to report suspected child abuse.
When Mr. Kline was in the legislature, he helped write the 22-week limit.
Although Mr. Kline emphasized statutory rape in his news conference, many here on both sides of the abortion debate said they suspected that his real target was doctors who provide late-term abortions.
Kansas law restricts abortions after 22 weeks of pregnancy, where the fetus would be viable outside the womb, except when "continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman."
Despite that law passed in 1998, Kansas has become a national magnet for late-term abortions because of a doctor in Wichita who performs hundreds of them each year. The doctor, George Tiller, funneled at least $150,000 through political action committees to Mr. Kline's opponent in the attorney general's race in 2002, and his clinic, Women's Health Care Services, is one of the two whose records are being subpoenaed.
In a statement on Dr. Tiller's behalf, his lawyer and a spokesman noted that he had complied with a subpoena from Texas authorities this week in relation to a patient who died after an abortion at his clinic and said he "scrupulously follows" Kansas laws on reporting suspected child abuse.
But, the statement says: "Our client has an extraordinary duty to protect the privacy of his patients. He is bound to do so by law, by ethics and by compassion."
State lawmakers and advocates on both sides seized on the investigation as the latest front in the abortion wars. State Senator Marci Francisco, Democrat of Lawrence, said, "We shouldn't use medical records to try to identify whether crimes have been committed."
State Senator Jim Barnett, an Emporia Republican who is a practicing physician, said that a young girl's pregnancy was evidence of statutory rape and that "if it's occurring the one time, it's probably going to happen again."
Nancy Keenan, president of Naral Pro-Choice America, called the subpoenas wildly intrusive and wrote in an e-mail message, "The vast majority of Americans will rightly be appalled at the notion of a state official issuing a mass subpoena about the most private, personal information there is."
Mary Kay Culp, executive director of Kansans for Life, an anti-abortion group, said, "It is shameful that anybody would want to stop" Mr. Kline from pursuing lawbreakers.
"We're talking about sworn law enforcement officers having access to files so they can go after child rapists and predators," Ms. Culp said in a telephone interview. "Because our attorney general happens to be pro-life is no reason to deny him information that can spare children that pain."
The clinics' brief said that the subpoena covered "the entire, unredacted patient files of nearly 90 women who obtained abortions at two Kansas clinics in 2003" and that it was not limited by age or the absence of abuse reports.
State health records show that 78 Kansans younger than 15 received abortions in 2003 and that 491 abortions were performed past the 22nd week of pregnancy, though the late-term abortions were not broken down by the patients' ages.
After closed hearings, Richard D. Anderson, chief judge of Shawnee County District Court here, ordered the two clinics to provide the records for review by a lawyer to be selected by the judge and a physician picked by Mr. Kline. The clinics are asking the State Supreme Court to quash the subpoena, narrow its scope or at least remove the patients' names.
It is unclear exactly how the records could lead prosecutors to rape suspects, although the clinics say the files often include information about how patients became pregnant, among other "intimate details of their lives" like sexual history, birth control practices, drug use, psychological profiles, information about fetal anomalies and communications with law enforcement.
"These records are of the utmost sensitivity," the brief says. "The logical and natural progression of this action could well be a knock on the door of a woman who exercised her constitutional right to privacy by special agents of the attorney general who seek to inquire into her personal medical, sexual or legal history."
Mr. Kline, head of the national Republican attorneys general association, was in the Kansas House for eight years and is a staunch abortion opponent. He argued last year that Roe v. Wade should be overturned in an brief in the federal cases on abortions after the first trimester.
Gretchen Ruethling contributed reporting from Chicago for this article.
What's the Matter with Kansas Now?
Apropos of my earlier post regarding the necessity of being vigilant about encroachments on women’s rights, we get this story out of Kansas, where the Attorney General, Phill Kline, who happens to be head of the national Republican attorneys general association, is trying to obtain the medical records of women and girls who had late-term abortions. His rationale is that he needs information in the files to prosecute criminal cases.
Eh?
Kline asserts that the medical records will help him prosecute statutory rape cases and pursue health professionals who have failed to report cases of suspected child sexual abuse, which they are compelled to do by state law. "There are two things that child predators want,” he said, “access to children and secrecy. As attorney general, I'm bound and determined not to give them either."
How laudable. The first problem (and there’s always a problem with the intentions of these folks, isn’t there?) is that invading the privacy of rape victims, statutory or otherwise, is in direct contradiction to the facilitation of an atmosphere where rape victims feel safe to identify their accusers. Revictimizing them by forcibly revealing intimidate details between themselves and their doctors is both heartless and unproductive. Additionally, rape victims who know and fear retribution from their attackers are already loathe to report the crime; this idiotic idea will make them loathe to seek medical treatment as well. The second problem is:
the subpoena cover[s] "the entire, unredacted patient files of nearly 90 women who obtained abortions at two Kansas clinics in 2003" and that it was not limited by age or the absence of abuse reports.
Hmm. A mass subpoena of women’s medical records, giving Kline access to information well above and beyond what’s relevant for statutory rape cases, including personal details like marital status, race, employment history, emergency contacts, psychological profiles, methods of birth control, prior history of abortions, use of drugs, unrelated health conditions, etc. To say the least, it seems to raise questions about the contention that his objective is prosecuting child predators. One might even say that this isn’t really about statutory rape at all:
Kansas law restricts abortions after 22 weeks of pregnancy, where the fetus would be viable outside the womb, except when "continuation of the pregnancy will cause a substantial and irreversible impairment of a major bodily function of the pregnant woman."
Despite that law passed in 1998, Kansas has become a national magnet for late-term abortions because of a doctor in Wichita who performs hundreds of them each year. The doctor, George Tiller, funneled at least $150,000 through political action committees to Mr. Kline's opponent in the attorney general's race in 2002, and his clinic, Women's Health Care Services, is one of the two whose records are being subpoenaed.
Call me cynical, but I suspect that if Dr. Tiller had funneled at least $150,000 through political action committees to Mr. Kline, instead of his opponent, his medical practice wouldn’t receive much scrutiny from the attorney general’s office regardless of the number of abortions he performed. Think that’s a bit of outrageous hyperbole? Well, let’s not forget, shall we, the recently elected Republican Senator from Oklahoma, Tom Coburn, who sterilized a female patient without her written consent and then made a fraudulent claim to Medicaid for reimbursement for the procedure. The party of moral values welcomed him into the fold with open arms.
Then again, maybe it’s about this:
In a statement on Dr. Tiller's behalf, his lawyer and a spokesman noted that he had complied with a subpoena from Texas authorities this week in relation to a patient who died after an abortion at his clinic…
If error by Dr. Tiller indeed caused the death of that patient, then he should be punished. (And, if Bush & Co. have their way, her family would receive a whopping $250,000 settlement.) But the privacy of the rest of Dr. Tiller’s patients should be invaded to see to it that he is.
The issue here is that there is no clear motive for subpoenaing all 90 of these women’s medical records. It is to prosecute perpetrators of statutory rape? Is it a witch hunt against a political antagonist? Is it an attempt to discern possible malpractice? Any of the above are dubious (to be generous) grounds for said subpoena, anyway. Kline obviously cares about reducing the number of abortions in his state, which in and of itself is a goal that anyone can support. But the ends do not justify the means. They rarely do.
-- Shakespeare's Sister
FLOUTING PRIVACY. The news last week that the attorney general of Kansas, Phill Kline, was requesting the private medical records of some 90 women who had late-term abortions in his state was couched in the terms of protecting children from rape. Despite his claim to be fighting "for more open and transparent government," Kline had been conducting this investigation under a cloak provided by a courtroom gag order. As the Times explained earlier this week:
In a shocking abuse of office, the attorney general of Kansas is conducting a stealth campaign to violate the privacy of about 90 women who obtained late-term abortions, offering the flimsy claim that he's looking for evidence of crime.
Protected by a sweeping gag order from a local judge, Attorney General Phill Kline has been demanding the women's records from two clinics that have been unable to even warn clients that their intimate histories are being sought. When the inquiry finally came to light through a court brief, Mr. Kline maintained that he needed all the women's records - including their identities, sexual histories, clinical profiles and birth control methods - to prosecute statutory rape and other suspected sexual crimes.
What's amazing here is that this seems to be not only a Big Brother attempt to boldly undermine abortion rights in Kansas (that's obvious, and Kline has long been unabashed in those efforts) but that it completely flaunts any semblance of adherence to HiPAA privacy standards (pdf). The standards maintain that "Providers and health insurers who are required to follow this law must comply with[the patient's] right to . . . Receive a notice that tells you how your health information may be used and shared [and] Decide if you want to give your permission before your health information can be used or shared for certain purposes . . . Get a report on when and why your health information was shared for certain purposes." Kline's efforts, bald as they are, reports the LA Times, will mean every intimate detail about a patient's life is exposed. Surely there is some bipartisan ground on such a violation.
But this isn't a first-time above-the-law moment for Kline. As the Times' editorial continued:
Two years ago, Mr. Kline called on health-care providers to report underage sexual activity, but a federal judge ruled him out of line. Mr. Kline deserves another rebuff, beginning with the suspension of the gag order.
The targeted clinics say they have observed state requirements to report possible crimes. They have filed an appeal to the State Supreme Court, complaining that Mr. Kline is conducting a fishing expedition, not a case-specific inquiry. The clinics have suggested a compromise - that the identities of the women be blacked out with the option for more information from any whose records might yield evidence of crimes like statutory rape.
It's not at all clear how that crime is linked in particular to late-term abortions, which just happen to be the current target of Republican anti-abortion activists across the country. Late-term abortions - beyond 22 weeks of gestation - are illegal in Kansas, except when they are done to protect a woman's health. But Mr. Kline offers no evidence to suggest he has any legal ground to justify pawing through the confidential records of the 90 women he has targeted for his mission of harassment. As for predatory abuse of girls under the age of sexual consent, they could have obtained abortions earlier than 22 weeks.
Now the Kansas City Star reports that Kline didn't even bother with his weak excuses once he assumed no public would be reading his actual legal materials:
legal documents that Kline filed Thursday with the Kansas Supreme Court make little mention of child predators, and instead indicate that the legal battle centers on the clinics themselves and whether doctors are following the law in performing late-term abortions. ...
The secret judicial inquiry began last fall, coming to light last week when the clinics filed a brief asking the Supreme Court to intercede. The clinics have asked the court to overrule a Shawnee County district judge, who ordered the clinics to comply with Kline's subpoenas.
Of course, part of the reason Kline's actions induce terror in women across the country is because they are so Ashcroftian. The former AG also appeared to have no qualms about issuing subpoenas for women's medical histories connected to abortion -- or about intimidating doctors to the extent that anti-abortion efforts become redundant.
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