US. Attorney General John Ashcroft went on the offensive as he defended his recent subpoenas seeking patient medical records related to so-called partial-birth abortions at a handful of hospitals.
Speaking to reporters, Ashcroft vowed to defend the Partial Birth Abortion Ban Act of 2003 and said his request for patient records was a legitimate search for the truth. Ashcroft's comments came a week after a Chicago federal judge quashed a subpoena seeking medical records from Northwestern Memorial Hospital in Chicago for patients who received late-term or partial-birth abortions from one of seven physicians challenging the constitutionality of the law President Bush signed last November. Modern Healthcare was the first to report the story (Feb. 9, p. 3).
Ashcroft told reporters he would uphold the law forbidding the practice, which he called "horrendous."
"The individuals who sought to persist in the practice have challenged the law in court," he said. "And the basis upon which they have challenged the law is to say that sometimes this practice is medically necessary."
At least six hospitals have been identified as receiving subpoenas. Besides Northwestern, they include University of Michigan Hospitals and Health Centers in Ann Arbor; Hahnemann University Hospital in Philadelphia; Columbia Presbyterian Medical Center and Weill Cornell Medical Center, both part of New York-Presbyterian Hospital; St. Luke's-Roosevelt Hospital Center, also in New York, and UMDNJ-University Hospital in Newark, N.J.
Providers and patient advocates have argued that the subpoenas violate patient privacy protections.
Ashcroft said to defend the law, the U.S. Justice Department sought the records to find out whether the abortions were indeed medically necessary. He said U.S. District Judge Richard Casey in New York, who is presiding over the physicians' challenge and ordered the hospitals to produce the information, provided a legal basis for obtaining the confidential patient information, which he conceded is sensitive.
"Medical records and medical activities of people in the United States should not be the subject of publicity," he said, noting the Justice Department took "every precaution possible" to mask identifying information in the medical records requests, such as expunging names and addresses.
But House Democrats called for Ashcroft to end the records search. "It is outrageous that Attorney General Ashcroft has instructed the Justice Department to look into the medical files of women who have had legal abortions," said Rep. Eliot Engel (D-N.Y.). "People's medical records should not be the tools of political operatives."
Weeks after the physician plaintiffs filed their challenge, the government demanded the patient records. The doctors challenged the law because they said it contains no exception for preserving the life of the mother.
The doctors, who are represented by the American Civil Liberties Union, refused to comment. In his 16-page opinion to quash Ashcroft's subpoena on Feb. 5, U.S. Chief District Judge Charles Kocoras said that the Health Insurance Portability and Accountability Act defers to state privacy laws when state privacy protections are greater than federal ones. He said Ashcroft didn't need the information requested in the subpoenas and suggested the nation's top lawyer was seeking it to impeach the credibility of the doctors filing suit. Attorneys for Hahnemann Hospital also moved to quash the subpoena. Hospitals in New York and Michigan have not yet responded to the subpoenas. A spokeswoman for UMDNJ-University Hospital said its lawyers told Ashcroft the procedure was not performed there and thus it had no data.
Dan Rode, vice president of policy and government relations for the American Health Information Management Association, said Ashcroft's efforts could introduce "a fear factor" into the healthcare process and erode patient trust in the confidentiality of medical information. Chicago healthcare lawyer Jack Rovner, who specializes in patient privacy issues, said the good news for Illinois patients is that HIPAA works.
"The great irony is that Congress, by enacting HIPAA, essentially elevates the supremacy of state medical privacy laws to the federal law level," Rovner said. "The problem will be that the result could legally differ in each state."