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March 29, 2004
Judge Posner: "Skillful Googlers" Reason to Preserve Privacy in Abortion-related Medical RecordsEmail This EntryPrint This Entry
Posted by Jason Schultz

As many readers might know, there are three ongoing concurrent challenges to the recently passed Partial Birth Abortion Ban in court these days. In fact, trial in the San Francisco Case was scheduled to begin today.

Part of the issues before the courts is whether or not so-called "partial birth" abortions are ever medically necessary to preserve the health of the pregnant woman. (The Ban does not include any exception for such circumstances). Congress found that such procedures were never medically necessary. Planned Parenthood and other abortion providers disagree. As part of its preparation for trial on this issue, the U.S. Gov't sought to subpoena the medical records of women who have had the procedure. PP and the other providers sought to quash the subpoena. The district court in Chicago quashed the subpoena and the Government appealed the the 7th Circuit for reversal. Just the other day, the 7th Circuit handed down their opinion (penned by the well-known hand of Judge Posner) affirming rejection of the subpoena.

While the opinion is interesting for any number of other reasons, I found Posner's reference to Internet privacy (or the lack thereof) as a reason particularly interesting:

This is hardly a typical case in which medical records get drawn into a lawsuit. Reflecting the fierce emotions that the long-running controversy over the morality and legality of abortion has made combustible, the Partial-Birth Abortion Ban Act and the litigation challenging its constitutionality—and even more so the rash of suits around the country in which the Department of Justice has been seeking the hospital records of abortion patients—have generated enormous publicity. These women must know that, and doubtless they are also aware that hostility to abortion has at times erupted into violence, including criminal obstruction of entry into abortion clinics, the firebombing of clinics, and the assassination of physicians who perform abortions. Some of these women will be afraid that when their redacted records are made a part of the trial record in New York, 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. As the court pointed out in Parkson v. Central DuPage Hospital, supra, 435 N.E.2d at 144, “whether the patients’ identities would remain confidential by the exclusion of their names and identifying numbers is questionable at best. The patients’ admit and discharge summaries arguably contain histories of the patients’ prior and present medical conditions, information that in the cumulative can make the possibility of recognition very high.”

And check out this rather empathetic section:

Even if there were no possibility that a patient’s identity might be learned from a redacted medical record, there would be an invasion of privacy. Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her. She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.

Category: Privacy

Joseph Pietro Riolo on March 30, 2004 07:47 AM writes...

First, how does your blog relate to copyright?
Do you give a hint that privacy is more important
than the public domain that it must be given many
more protections than what the copyright provides?

Searching for anything on the relationship between
privacy and the public domain in the article titled
"The Public's Domain: The Evolution of Legal
Restraints on the Government's Power to Control
Public Access Through Secrecy or Intellectual
Property" by Professor Edward Lee at
http://www.elee.cc/pd.pdf, I arrived at the
footnote #351 that said that the discussion on
the relationship has to wait for other day. :-(

Joseph Pietro Riolo

Public domain notice: I put all of my expressions
in this comment in the public domain.

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