This decision is extraordinary for several reasons. First, the appeals court concluded that this mysterious “privacy right” protected abortion records but not other medical records. That privacy right — though not recognized by Congress in HIPAA — derived, according to the court, mostly from the sensitive nature of a woman’s abortion decision, as if this decision were somehow deserving of greater legal protection than the myriad other difficult medical decisions a human being makes in a lifetime. Second, although numerous other courts had previously concluded that privacy rights were not affected when patients’ names and other identifying information were removed from medical records sought in lawsuits, this court reasoned that no amount of ID-scrubbing could stop this alleged invasion of privacy. Finally, the court demanded that the government satisfy a heightened standard of relevance never before seen in the law. Indeed, when questioning a Justice Department lawyer about the government’s need for the documents, one federal judge skeptically asked: “And on this the fate of the Republic hinges?”
Nor has the law alone been suborned to the needs of the abortion lobby. The medical academy and the practice of medicine have been drafted as well. In June 2000, when Nebraska’s partial-birth-abortion ban was upheld by the Supreme Court, one of the most serious pieces of evidence to show that this abortion method had no medical value was that it was not taught in any medical school. Since then, major medical schools, such as those at Northwestern, Columbia, and Cornell, have added partial-birth abortion to their clinical teaching. The support by those schools of the most extreme method of abortion doesn’t stop there, however. Faculty at the same schools lined up to challenge the federal ban in court, testifying that partial-birth abortion was “fantastic” and “a miracle.”
Despite the apparent contradiction, the medical establishment has gone to great lengths to defeat any laws designed to protect human life by regulating abortion and its methodology. The American College of Obstetricians and Gynecologists, an otherwise esteemed group of practitioners, weighed in against legislation banning partial-birth abortion in a “policy statement” provided to Congress. In it, ACOG concluded that partial-birth abortion “may be” the most appropriate method in certain circumstances, even though the group could not identify any such circumstances. That finding speaks not to the medical experience of ACOG’s members, but to the politics of its leadership.
This politics-disguised-as-medicine approach to the abortion debate is especially disturbing when coupled with tactics of intimidation that would make Tony Soprano proud. The few doctors who have regularly testified in favor of the abortion ban know the marginalization in the medical community that comes with dissenting from abortion ideology. When reaching out to potential witnesses, government lawyers learned of the professional intimidation suffered by those doctors who considered testifying. Doctors were told by superiors and colleagues that it would not be in their best professional interests to cooperate with the government. As one government witness testified at trial, “I wouldn’t view it as a career-enhancing move, being here today.”