Privacy rights: a slippery slope...

#1
Privacy in Peril

February 14, 2004

In an attempt to bolster its defense of the
unconstitutional Partial Birth Abortion Act of 2003, the
Bush administration has gone beyond its campaign to destroy
women's reproductive rights and has attacked the privacy
rights of all Americans.

This assault is being conducted through subpoenas the
Justice Department has issued demanding that at least six
hospitals in New York City, Philadelphia, Illinois and
elsewhere turn over hundreds of patient records for certain
abortions. This egregious intrusion on patients' privacy is
being pursued in the name of defending lawsuits against the
abortion ban. Not only is the information not needed to do
that, but it is also a flagrant example of why Congress and
the attorney general have no business second-guessing
sensitive medical decisions made by individuals and their
doctors.

Judges in New York and Nebraska have barred the
administration from enforcing the abortion law in response
to suits brought by groups of doctors, who have argued,
correctly, that the ban should be struck down because of
imprecise wording and the lack of an exception to protect a
woman's health. A narrow Supreme Court majority struck down
a state ban in 2000 for omitting a health exception.

Attorney General John Ashcroft says the fishing expedition
his department has started is justified to evaluate whether
the procedures covered by the law are ever necessary to
preserve a woman's health. In a sound ruling last week, a
federal judge in Illinois rebuffed this flimsy argument.
Citing state and federal law, as well as Supreme Court
precedent, the judge, Charles Kocoras, also rejected the
Ashcroft team's astonishing claim that no doctor-patient
privilege exists under federal law protecting patients from
public disclosure of their records.

Unfortunately, the federal judge in New York overseeing one
of the legal challenges to the new law does not grasp his
duty to protect patient privacy. That judge, Richard Conway
Casey of New York's Southern District, has threatened to
lift his injunction blocking enforcement of the abortion
ban if leading hospitals in New York City and elsewhere
fail to produce files on at least several dozen women's
abortions.

Underscoring the legally dubious nature of Judge Casey's
threat, the hospitals in question are not themselves
parties to the lawsuit. Nor, for that matter, are the women
whose personal privacy Mr. Ashcroft is so determined to
invade. Moreover, as Judge Kocoras aptly noted, redacting a
patient's name and identification number from her file
neither ends the harm to individuals of having intimate
details of their medical history publicly disclosed, nor
adequately protects the patients' identities.

We applaud those hospitals that are resisting Mr.
Ashcroft's privacy invasion, and encourage them to stand
firm until the legal proceedings run their course.
Meanwhile, Americans should see Mr. Ashcroft's intimidating
tactics for the dangerous threat to liberty and privacy
they really are.

http://www.nytimes.com/2004/02/14/opinion/14SAT1.html?ex=1077787524&ei=1&en=dc44c89f8a568f21
 
#2
Originally posted by Cat_Ballou
Citing state and federal law, as well as Supreme Court
precedent, the judge, Charles Kocoras, also rejected the
Ashcroft team's astonishing claim that no doctor-patient
privilege exists under federal law protecting patients from
public disclosure of their records.
[italics mine]
What the fuck???!!!

I suddenly feel a whole lot better about how carefully I've learned to word all my answers to "officials" of every stripe. The weird thing is, I just had a conversation with a new gynecologist about this exact subject -- the fact that the clinic could not, in the current climate, really guarantee the privacy of my records -- and we actually spoke in a sort of code, so that she learned what she needed to know in order to treat me effectively, but without learning anything problematic that she would otherwise be required to record...
 
#3
If there's any silver lining in this it's that Ashcroft and the religious right may just cost Bush the election. I know I'll be keeping my fingers crossed.
 
#4
Hmmm

As I understand it, from NPR:

1. Defenders of partial birth abortion say that it is medically necessary.

2. Those opposed say it is rarely necessary to protect the life of the mother.

3. The administration has asked/demanded records of partial birth abortions which have been scrubbed of any information that would identify and individual.

It seems to me that if you want to make an arguement that it is necessary to save the life of the mother, you should put up or shut up. Especially, since no data identifying an individual would be provided.
 
#5
Re: Hmmm

Originally posted by redleg609
As I understand it, from NPR:

1. Defenders of partial birth abortion say that it is medically necessary.

2. Those opposed say it is rarely necessary to protect the life of the mother.

3. The administration has asked/demanded records of partial birth abortions which have been scrubbed of any information that would identify and individual.

It seems to me that if you want to make an arguement that it is necessary to save the life of the mother, you should put up or shut up. Especially, since no data identifying an individual would be provided.
Yeah it seems that way, but you are not looking as far down the road as Ashcroft and the Doctors.

Ashcroft wants those records so that he can prosecute doctors and hospitals, and patients, for certain kinds of abortions, whether they are legal or not. His strategy is to get the records, get his experts to say that they were not medically necessary, launch a prosecution and subpeona the doctors and the patients. Docotr patient confidentiality is not protected in cases of the commission of a crime.

The purpose is to intimidate the medical establishment and women from seeking abortion.

It doesn't matter how clean those records are. If the prick doesn't get them, he can't prosecute. So you don't give them up.
 
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#6
On a different note about privacy,I was reading the Washington section of Big Doggie and there is a large section about a prostitution establishment that was raided 4 years ago and the woman plea bargained down to a $100 fine but her records were confiscated and the press filed to see them under the freedom of information act and the city(frederick MD) had to release all info0approx 85,000 pages of computer files with names etc
 
#7
The following is from 2/17 edition of the NY Times about the Black Book in Maryland. Do we have anything to worry about when providers say they destroy our information after the encounter?

By JAMES DAO

Published: February 19, 2004


REDERICK, Md., Feb. 18 — Love may be a fleeting thing, but ***** messages are forever. Or so the chagrined clientele of Madam Angelika Potter's Corporate Affair escort service are learning.

On Wednesday, the City of Frederick ended a long-running lawsuit by releasing evidence from a seven-month police investigation into Ms. Potter's once-thriving prostitution business, including photographs, financial ledgers, police surveillance tapes and 8,500 pages of documents, mainly ***** messages from the lovelorn and lusty.

The trove was set out for viewing in the elegant second-floor foyer of City Hall. Reporters sifted through boxes of documents while a television set played a police surveillance video of men entering and leaving Ms. Potter's place of business. Among the evidence was what everyone in Frederick, about 40 miles north of Washington, now knows as the "black book," Ms. Potter's meticulously maintained list of clients.

The list, with thousands of names, has been a tinderbox of controversy since Ms. Potter pleaded guilty to a misdemeanor charge of "operating a house of assignation" in November 2000, for which she paid a $100 fine.

Outraged at what they viewed a lenient penalty, some residents, including the president of the local N.A.A.C.P. chapter, accused the authorities of letting Ms. Potter off the hook to keep her client list secret. There could be only one reason, they argued. The list must contain the names of officials and other Frederick elite.

The police and prosecutors denied that, saying there was not enough evidence to convict Ms. Potter of more serious charges. The Frederick News-Post, along with a resident and The Associated Press, sued, demanding the release of the records. Late last month, a state appellate court ruled in their favor, and on Wednesday, the records went public.

It seems fair to say that at least a few men in this city of 52,000 are nervous about what lies inside. Already, City Hall has been inundated with phone calls about the list, mainly from wives asking whether their husbands are on it, officials said. More than 100 copies of "the book" have been sold at $20 apiece to the curious and vindictive alike. The News-Post has assigned six people, including the publisher, to search the files for familiar names.

The acting publisher, Robin L. Quillon, said the paper did not intend to print the entire list of men who paid $250 an hour at Ms. Potter's. But Mr. Quillon said his paper was determined to find out whether there had indeed been a cover-up of official misconduct, or at least hanky-panky.

"How can a major investigation fizzle when it reaches the county courthouse?" Mr. Quillon asked in an interview. "We're not here to titillate. But we believe prominent public officials, by virtue of their duties, can be judged by a different standard."

Ms. Potter's list has already helped end one career, that of Blaine Young, whose name was on a partial list released in 2001. Mr. Young, an alderman at the time and the son of a former mayor, said he had hired the women to dance at parties, not for sex. He decided not to run for re-election after The News-Post published reports on his liaisons.

The controversy may also have contributed to the defeat in 2001 of Mayor James S. Grimes, who fought against releasing the records and was an ally of Mr. Young. Jennifer P. Dougherty, a restaurant owner, challenged Mr. Grimes on an open-government platform, promising to release the black book. She won handily.

But the release was not so easy. The city's insurance company told Ms. Dougherty that she had to fight an order from a lower court to release the files, lest the city be liable to suits by angry johns. The mayor appealed, and the city lost on Jan. 28 in the Court of Special Appeals.

Since then, the city's four lawyers have been reading every ***** message and document, editing out Social Security numbers and financial information about the clients. Copying the documents has cost the city $10,000, officials said.

The process has also put the city in the odd position of being an official purveyor of pornography, because it has to release a smutty homemade video seized by the police. The city offers "private screenings" of the video, which it also sells for $20.

"This isn't exactly what I expected to be doing when I went to law school," Heather Price Smith, the city's chief legal services officer, said.

The thousands of messages, from the kinky to the quotidian, show the inner working of the prostitution ring and pornographic Web site that Ms. Potter ran from home in Walkersville and an apartment here before her arrest in July 1999. (The Web site remains in operation.)

There are inquiries from a Baltimore man who wanted to dress like a woman while being seduced by a woman and from a Maryland man who wanted to film a naked woman dialing the phone for 20 minutes.

Pat from Seattle wondered whether a woman could meet him at Baltimore/Washington International Airport. Sam wanted a night session involving "three physical encounters."

"My needs are pretty strong," he wrote.

Alan requested a special birthday encounter with Ms. Potter herself.

Women sent photos asking to join the escort service. So did men. One, "Bambam," who sent messages from a House of Representatives Internet address, asked to be listed as an exotic dancer on the Web site.
 
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#8
Re: Re: Hmmm

Originally posted by Bebop
Yeah it seems that way, but you are not looking as far down the road as Ashcroft and the Doctors.

Ashcroft wants those records so that he can prosecute doctors and hospitals, and patients, for certain kinds of abortions, whether they are legal or not. SNIP....
.
(1) Any acts occurring before a law goes into effect proscribing them cannot be prosecuted.

(2) If only the medical data is included not hospital name, doctor name, patient name, etc, how is it that any one or any institution can be identified?

Get a grip. Most government is basically incompetent.

Oh, BTW, I think the word you are looking for regarding actions taken against person perform legal acts is persecute.
 
#9
Re: Re: Re: Hmmm

Originally posted by redleg609
Get a grip. Most government is basically incompetent.
i always say this to worked up radicals. i mean REALLY. that being said, that doesn't mean it doesn't bear being torn down. i'm going to cuba in a couple of months, know anybody that's been? got any advice?
 
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#10
Doctors, Hospitals Challenge U.S. Subpoenas

Justice Department Seeks Confidential Medical Records on Banned Late-Term Abortion Procedure

By Dan Eggen
Washington Post Staff Writer
Thursday, February 12, 2004; Page A04


A group of physicians and hospitals is fighting Justice Department subpoenas for confidential medical records of patients who have undergone a type of late-term abortion, part of an escalating legal battle over a new federal ban on the procedure, court records and officials said.

The dispute resulted in contradictory orders last week from federal judges in Chicago and New York over whether the records may be released. The outcome of the dispute could determine whether federal officials will soon be able to widely enforce the Partial Birth Abortion Ban Act, which was signed into law on Nov. 5 but has been restricted by several temporary restraining orders issued in federal courts.

In a lawsuit filed by the National Abortion Federation and seven physicians against Attorney General John D. Ashcroft, Justice Department attorneys have demanded patient records from hospitals used by the doctors involved, records show. Government lawyers contend that such requests are common in many areas of civil law, and that patients' names and other identifying information can be redacted from the files before they are turned over.

But a federal judge in Illinois last week blocked the government from enforcing a subpoena against Northwestern Memorial Hospital in Chicago, ruling that the demand violated state and federal privacy laws. hospitals in Michigan, New York and Pennsylvania have also refused to comply because of patient privacy concerns, according to records and officials.

The standoff so angered a New York judge that he threatened last week to lift an injunction barring enforcement of the abortion ban against the plaintiffs in the case, who represent half of the nation's abortion providers.

U.S. District Judge Richard Conway Casey of the Southern District of New York told attorneys that the physicians had opened themselves to such subpoenas by filing the lawsuit, and that the records request would not threaten patient privacy because personal information would be blocked out.

"I will not -- hear me out loud and clear -- I will not let . . . the doctors hide behind the shield of the hospital," Casey said on Feb. 5, according to a transcript. "Is that clear? I am fed up with stalls and delays. . . . The information relevant to this case will be produced. Otherwise, I will entertain whatever actions the government wishes to seek."

On the same day, however, U.S. Chief District Judge Charles P. Kocoras of the Northern District of Illinois quashed the government's subpoena of records at Northwestern Memorial, calling the request "a significant intrusion" of patients' privacy that would provide "little, if any, probative value" to the government's case.

Kocoras ruled that strict Illinois privacy restrictions trump disclosures allowed by federal law, and that the subpoena would "require Northwestern to disclose medical history information" that could be used to identify patients.

"American history discloses that the abortion decision is one of the most controversial decisions in modern life," Kocoras wrote. "An emotionally charged decision will be rendered more so if the confidential medical records are released to the public, however redacted, for use in public litigation in which the patient is not even a party."

The law at the heart of the court fight bans a controversial abortion procedure, generally performed in the second or third trimester, in which the fetus is partially delivered. Proponents say the procedure is necessary in some cases to preserve the life or health of the woman, but opponents, who call it "partial birth" abortion, describe it as barbaric .

The procedure was relatively rare, with 2,000 to 2,200 performed annually before the ban, according to various estimates. That number represents about 0.17 percent of total abortions annually.

Kocoras was appointed to the bench in 1980 by President Jimmy Carter. Casey, the judge in New York, was appointed in 1997 by President Bill Clinton. In issuing his injunction in November, Casey predicted that the abortion federation and the other plaintiffs would win their case.

Justice Department spokeswoman Monica Goodling said the government was reviewing the Kocoras ruling, but declined to comment further. Sheila M. Gowen, an assistant U.S. attorney, told Casey at the Feb. 5 hearing that " the government is not interested certainly in the private names and addresses and Social Security numbers of these patients. That is not the purpose here."

Representatives for the plaintiffs, including the abortion federation and the American Civil Liberties Union, also declined to discuss the case. "We are unable to comment because of ongoing litigation," federation spokeswoman Jennifer Helburn said.

(cont'd)
 
#11
(cont'd)

Daniel J. Solove, an information privacy expert at Seton Hall Law School, said the subpoena fight reflects the uncertain legal terrain surrounding medical privacy issues, especially because a new federal law -- the Health Insurance Portability and Accountability Act (HIPAA) -- outlines boundaries that frequently conflict with state laws.

"Medical information is typically understood as some of the most private things maintained about people," Solove said. "But HIPAA basically allows the government to obtain medical records with a subpoena or court order in quite a number of circumstances."

In addition to Northwestern Memorial, court records identify at least four other hospitals that have refused to comply with the subpoenas because of privacy objections or, in some cases, because officials said they do not believe they have documents covered by the demands. They are New York-Presbyterian and St. Luke's-Roosevelt Hospital Center, both in New York; Hahnemann University Hospital in Philadelphia; and the University of Michigan Hospitals and Health Centers in Ann Arbor, Mich.

Kallie Michels, director of public relations for the Ann Arbor facility, said the hospital "has never seen this happen before, to have patient records subpoenaed in this manner. . . . We have refused to comply because it violates both state and federal privacy laws."

But Michigan lawyers recently indicated they might turn over the records with some limitations, according to documents.
 
#12
I personally believe that it's up to the individual couple (female and male) to determinie if abortion would be appropriate in their situation. However if people want to skirt around the ban claiming that partial birth abortions are medically necessary because it's for the health of the female, then prove the case.
Provide the data while blocking out the personal information of the individual people involved.

Prove the facts back up the claim and all will be well. If they don't, then of course the ban should remain. Can't change a law for the whole nation with just the words of special interest folks.
Doctors have a lifestyle to maintain so they should be considered biased. It's all about the facts. Either it supports the Doctors/Abortion rights people's position or debunks it.
 
#13
Is this a discussion about the privacy rights of patients or partial birth abortion?

Please don't cloud one issue with the other. Politicians, religious orders and exploiters alike use clouding techniques to confuse the masses and thus maintain/increase their power and wealth.

That said, I think that Ashcroft is legally correct in saying that patient's right to privacy is not federally protected. I could be wrong.

The question is if it isn't protected, should it be? I believe in an open society. Therefore, patient privacy should not be protected. However, anti-discrimination laws need to be stronger, broader and more punitive.
 
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#14
Re: Re: Re: Hmmm

Originally posted by redleg609
(2) If only the medical data is included not hospital name, doctor name, patient name, etc, how is it that any one or any institution can be identified?
[/B]
Justice looks at the records, and tells a court with a antiabortionist judge (Like Pickering) that the records indicate that the abortion was not medically necessary, and the court approves a subpeona for the entire record.

Like I said, YOU are not looking to far down the road.
 
#15
http://aolsvc.news.aol.com/news/article.adp?id=20040221172609990007

I remember when Frederick was a sleepy little two-street farm town...

Other things to consider about whether or not there is a constitutionally protected right to privacy with regard to medical records: the overwhelming majority of people believe that such protections exist, and approach their discussions with medical staff from that stance, so if it's not the case, it needs to be made explicitly clear...

Anyone and everyone in any form of psychological therapy needs to consider that anything they discuss with their therapist that goes into their record-- marital problems, infidelity, sexual deviancy, sexual addiction, whoring, pimping, depression, acute anxiety, or criminal activity of any stripe -- might wind up being looked at by someone you wouldn't have expected, and judged, and used against you...

The DOJ is issuing an awful lot of subpoenas lately (many of which they are being forced to back-peddle on, a telling sign): as frogs in the pot, it behooves us all to note that the water is getting a bit warmer...
 
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#16
While we're on the subject...

Limbaugh Says Prosecutors Seek Doc Records

WEST PALM BEACH, Fla. (Feb. 21) - Rush Limbaugh says prosecutors have subpoenaed records from his doctors as part of the investigation into the conservative radio commentator's prescription drug use.

Prosecutors are trying to determine whether Limbaugh visited several doctors to illegally receive duplicate prescriptions of controlled narcotics. Limbaugh sought treatment for his admitted addiction to painkillers in October and has not been charged with a crime.

On his radio show Friday, Limbaugh said Palm Beach County prosecutors sent subpoenas to the offices of four of his doctors, "demanding a list of every employee at every doctor's office I visited, from March to September of 2003," according to a transcript of the program on his Web site.

"They're already figuring they're going to win the opportunity to see my medical records, and once they see them, they want a list of names at these doctors' offices that they can re-subpoena and bring in for interviews," Limbaugh said.

Also Friday, the state's 4th District Court of Appeal in West Palm Beach gave prosecutors 15 days to respond to Limbaugh's appeal of a Palm Beach County judge's order allowing them to review his medical records, which remain sealed.

Limbaugh's attorney, Roy Black, contends that prosecutors violated Limbaugh's privacy rights when they seized the medical records late last year by using search warrants, rather than first notifying Limbaugh and giving him a chance to challenge the seizure.

A spokesman for Palm Beach County State Attorney Barry Krischer declined to comment Friday. He did not return phone calls Saturday.

Krischer has repeatedly insisted that investigators have followed the law and "scrupulously protected" Limbaugh's rights.

Krischer's office began investigating more than a year ago after Limbaugh's former maid told them she sold Limbaugh "large quantities of hydrocodone, Oxycontin and other pharmaceutical drugs" for years. She gave investigators ******s and answering machine recordings to support her claims.

On the Net:

Limbaugh: [url]http://www.rushlimbaugh.com/


02/21/04 14:06 EST
 
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#17
(FWIIW -- I worked as an administrator in a prominent doctor's office for a number of years, well before 9/11 and other factors of the current political climate entered into the "privacy question"; even then, because of the nature of his specialty, our office saw more than a few subpoenas that raised questions about how even very low-level employees could be dragged into legal proceedings, and in such a way as to make them feel, at best, unnerved and uncertain about who [if anyone] was on their side...)
 
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#18
Re: Re: Re: Re: Hmmm

Originally posted by h. von bingen
snip i'm going to cuba in a couple of months, know anybody that's been? got any advice? snip
Haven't been, but read somewhere recently that they'll try to stamp your passport there. Don't let 'em.
 
#19
thanks, but i'm going on a humanitarian mission, so it's legit (sort of). imo "5-star hotels" whatever that means in cuba, isn't a "humanitarian" mission.

are there any "5-star hotels" in cuba?

just checked. THERE ARE! hmm.
 
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#20
Love is when he comes on your face while you're sleeping? Yeah, sure, THAT'S love...

hvb, you've already made a huge, big fucking deal about your trip to Cuba elsewhere: everybody who cares at all about it, already knows. This thread is about constitutional privacy issues, not your vacation plans. Why not just start a thread called "hvb is going to Cuba?" instead of hijacking threads with completely different subjects? Many of us UGers don't find you and your life at all fascinating, and we'd like to talk about other things, without having to keep swotting at you like an ill-behaved child ...

"hvb goes on a humanitarian mission..."

LOL!!!

Heh ...
 
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