The Abortion Distortion
From the July 12, 2004, issue of NATIONAL REVIEW


The legal battle in three separate federal trials that have followed President Bush’s signing of the Partial Birth Abortion Ban Act in November 2003 illustrates how the abortion-rights lobby perverts the law, co-opts the medical profession, and debases the very language we speak. By controlling and distorting the debate in these ways, abortion advocates hope to prevent the American public from learning the stark truth about abortion practices — especially the abhorrent partial-birth method, in which a doctor delivers a living child until its legs and torso are hanging outside the mother and then pierces the child’s skull with a sharp instrument and vacuums out its brains.

Even before the act was signed into law, lawyers for Planned Parenthood, the ACLU, the Center for Reproductive Rights, and the National Abortion Federation filed suit in federal courts in New York, Nebraska, and San Francisco, arguing that it was unconstitutional. On June 1, Judge Phyllis Hamilton entered an injunction in the San Francisco case permanently prohibiting the enforcement of the statute against doctors and clinics affiliated with Planned Parenthood. (The separate Nebraska and New York decisions are expected in late summer or early fall.)

To support their arguments in these three cases, pro-abortion groups offered the sworn testimony of doctors from abortion clinics and major hospitals, who asserted that partial-birth abortion was medically necessary to protect the health of women with certain medical conditions or whose unborn children suffered certain developmental “anomalies.”

In order to test these doctors’ claims, government lawyers served subpoenas on the hospitals where the testifying doctors performed abortions, seeking medical records relating to those abortions. Sensitive to the need to protect the identity of the doctors’ patients, however, the government said that the hospitals could delete any identifying information (name, address, age, etc.) about the women involved in the abortions. The hospitals still refused to produce the documents and, employing a variety of absurd legal theories, went to court to prevent their release. Northwestern Memorial Hospital in Chicago, for instance, argued that the records could not be released because they were privileged from disclosure under both state and federal law. This claim was belied by the numerous contexts in which the government regularly receives medical records in federal lawsuits (such as disputes over Medicare billing by a hospital). Nevertheless, a Chicago lower-federal-court judge agreed with the hospital, based in part on a hitherto unrecognized federal “abortion records” privilege.

The government appealed, sensibly arguing that federal judges should not invent new protections peculiar to abortion records and that, in any event, the federal medical-privacy law — known as HIPAA — did permit the release of anonymous medical records in this lawsuit. The United States Court of Appeals agreed with the government that the lower court had both misread federal privacy law and had wrongly created a federal “abortion” privilege. By sleight-of-hand, the court nevertheless prevented the government from obtaining the records by concluding that a privacy right of an unspecified origin outweighed what the judges considered to be the marginal relevance of the documents.