Proving the Necessity of Partial Birth Abortion

by Sharon Mahler
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A group of abortionists and pro-abortion organizations, including Planned Parenthood and the National Abortion Federation, have challenged the Partial Birth Abortion Ban recently passed by the U.S. government. [The court challenges were made in January 2004. -Ed] One of their key claims is that the law is "unconstitutional" because it does not include an exception for cases when a partial birth abortion is necessary to preserve the health of the mother. (Article VI, Section 4, "Congress shall make no law restricting abortion that does not include an exception for the health of the mother". Oh wait, that's not in there. But let's just skip over that part.)

Congress often includes "findings" sections in laws to describe just why they wrote the law the way they did, as an aid to judges in applying the laws. In this case, Congress included a "finding" that, after hearing testimony from numerous medical experts, they concluded that there is no case where partial birth abortion is necessary to protect the health of the mother. There are many alternative procedures that would be at least as safe for her, and so a "health exception" would simply provide a loophole. Abortionists could debate the definition of "health" or argue about how health risks and benefits are determined and by whom.

Opponents of the law say this finding is wrong. The Justice Department, which is supposed to defend the law in court, asked the plaintiffs to back up this claim by producing the medical records of women who needed partial birth abortions for health reasons. Specifically, they asked for medical records from six hospitals that perform abortions and six Planned Parenthood abortion centers. As a Justice Department brief on the subject put it, "Plaintiff's contention that the banned procedure is medically necessary is thus central to their case, and the medical records revealing the instances in which plaintiffs have performed the procedure ... are critically important to assess their claim." Or as Attorney General John Ashcroft said at a press conference, "We sought from the judge authority to get medical records to find out whether indeed the allegation by the plaintiffs -- that it's medically necessary -- is really a fact."

Astonishly, the plaintiffs refused! You'd think they would be eager to display the evidence to prove that Congress was ignorant of the facts or even lying when they passed this law that the plaintiffs don't like. Imagine the press conference where they could put up a display with Congress's "findings" in big letters on one side, and medical documents on the other side proving that what Congress said was completely and totally wrong! But curiously, instead they replied that to produce such medical records would invade the privacy of women who have had abortions. The University of Michigan Medical Center, Northwestern Memorial Hospital, Hahnemann University Hospital in Philadelphia, San Francisco General Hospital, and Planned Parenthood affiliates in Pittsburgh, Washington, D.C., New York City, Kansas/Mid-Missouri, San Diego and Los Angeles, all refused to produce the records.

San Francisco City Attorney Dennis Herrera wrote the Justice Department that turning over the records would be "a gross violation of our patients' privacy rights." Rep. Eliot Engel, a pro-abortion New York Democrat, told the Associated Press, "People's medical records should not be the tools of political operatives. All Americans should have the right to visit their doctor and receive sound medical attention without the fear of Big Brother looking into those records."

But it's a little difficult to see how this information would invade anyone's privacy, as the Justice Department said that patient names, addresses, and other identifying information should all be removed before the records are made available.

U.S. District Judge Richard Casey was one of the judges who issued an order to block the law until a trial on its "constitutionality" could be held. He was shocked that the plaintiffs were now refusing to produce evidence that they claimed they had to back up their claims. Casey told the parties, "I will take all necessary guarantees to comply with the law and protect and that is very important to protect the privacy of the patients, but the information relevant to this case will be produced." And replying to the objections of the plaintiffs, he said, "Too bad. They are plaintiffs. They will cooperate and get it done. They didn't have to be plaintiffs. They chose to be and now they are going to get it done."

But several other judges have agreed with the plaintiffs, that they should not have to produce evidence to back up their claims in court, and blocked release of the records. This is a novel move. Government lawyers routinely subpoena medical records (with names and other identifying information removed) for court cases involving medical fraud and the like. I can't find any record of a doctor accused of, say, submitting fraudulent bills to Medicare successfully arguing that he cannot be required to provide any proof that he actually treated these patients on privacy grounds. Or of a drug company trying to get a new drug approved even trying to claim that they shouldn't have to give the Food and Drug Administration the results of clinical tests because that would violate patients' privacy rights.

If Planned Parenthood and company win this fight, plaintiffs in law suits will have a whole new strategy available to them: Claim that a nearby factory's pollution caused you serious health problems. You can prove your claims because you have all sorts of medical records detailing all the health problems you suffered. But you refuse to turn these over, because that would violate your privacy. So the court should simply take your word for it and award you huge damages. Or why should this be limited to medical records? Claim that your neighbor accepted money from you to buy his car and then refused to deliver the vehicle. He protests that there was no such deal and you never gave him any money. You can simply reply that you have your cancelled check and a signed receipt from him to prove that you did. But of course you cannot be expected to show these records to the court, because that would violate your privacy. Surely finances are just as deserving of privacy as medical history. So now the court should just take your word for it and order him to give you the car.

An added irony in this particular case is that one of the plaintiffs, the National Abortion Federation, have themselves said that these records are vital to deciding the case. When the law was being debated in Congress they produced a "resource guide" in which they belittled the credentials of the doctors who were testifying that partial birth abortion was not necessary to protect women's health. They said that as these doctors had not reviewed the medical records of these patients, "These doctors cannot determine what medical options were most appropriate." So their position is that it is impossible for anyone to evaluate whether this law is consitutional without seeing the medical records ... and neither the judge nor any experts other than themselves should be allowed to see the medical records. So how is a court supposed to evaluate the evidence? Are they just supposed to take the plaintiff's word that they have proof?

According to press reports, when the National Abortion Federation was asked to explain this curious position, quote, A spokeswoman for the National Abortion Federation did not have an immediate response, end-quote.

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Posted 21 Mar 2004.

Copyright 2004 by Sharon Mahler
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