In this Slate essay, Emily Bazelon charges that a special citizen grand-jury proceeding in Kansas is part of a supposed broader pattern of abortion opponents’ using document subpoenas as “a way of challenging doctors who perform late-term abortions and, perhaps, of scaring patients away from clinics.” Specifically, Bazelon objects to the grand jury’s subpoena of an abortion clinic’s records—redacted to eliminate information that would identify patients—“relating to a total of more than 2,000 women who’d come to the clinic 22 or more weeks pregnant” over a period of five years. The Kansas supreme court is now reviewing whether to require compliance with the subpoena, and Bazelon outlines her thinking on how the “justices can knock back this subpoena.”
Bazelon’s presentation is badly flawed. Consider:
1. Bazelon contends that the grand jury, in issuing the subpoena, has “run amok”, but, beyond her apparent visceral dislike for anything unwelcome to the pro-abortion cause, it’s difficult to discern an actual argument in support of her contention. Judges in previous proceedings had already found that the records that the grand jury seeks from 2003—which had been provided to previous investigators—established probable cause to believe that the abortion-clinic operator had committed various abortion-related crimes. Given that record (and even apart from whatever other evidence is available to the grand jury), it’s hardly wild speculation to suspect that the records from 2004 forward would provide evidence of further crimes.
It’s at best a misleading euphemism for Bazelon to assert that the subpoena is “a way of challenging doctors who perform late-term abortions” (much less “perhaps, of scaring patients away from clinics”). Rather, the subpoena is a standard tool furthering what Bazelon later acknowledges is “the state’s clear interest in investigating allegations of crime.” (Is the use of this tool in criminal investigations what Bazelon is complaining about when she nakedly asserts that abortion opponents have “repeatedly tried to subpoena the records of patients who visit abortion providers”? It would appear so.)
2. Bazelon relies on a 2004 opinion by Judge Posner “in a similar case” to suggest that the privacy interests of clinic patients in redacted abortion records are so weighty that the subpoena should be quashed. That suggestion is defective.
First, Posner’s ruling (in Northwestern Memorial Hospital v. Ashcroft) was not in a “similar case”—certainly not in the respects that matter. In his majority opinion for a divided Seventh Circuit panel, Posner weighed whether “the burden of compliance with [the subpoena for redacted abortion records] would exceed the benefit of production of the material sought by it.” The intended use of those records, Posner explained, was supposedly to impeach the testimony of a doctor in a civil proceeding, and Posner determined that the records lacked any significant probative value for that purpose. In other words, he weighed the benefit of providing the records at zero.
Second, Posner’s rank speculation that some women would reasonably fear that their identities might be determinable notwithstanding the redaction of the records is just that—rank speculation. It’s one thing for Posner to rely on that speculation in a case in which he’s determined that the anticipated benefits of material responsive to a subpoena are non-existent. Even rank speculation outweighs nothing. But in Kansas it would be quite a different matter to have rank speculation trump the probative value of the records responsive to the grand-jury subpoena.
In other words, the very weighing that Posner did in his case would likely yield a different result in Kansas. Under Posner’s approach, what the Kansas supreme court would have to do, keeping in mind “the state’s clear interest in investigating allegations of crime”, is soberly assess the probative value of the materials sought, explore how redaction requirements may minimize or eliminate speculative threats to privacy interests, and weigh the resulting “burden of compliance” against the “benefit of production”. (Kansas law of course might call for a different approach than Posner’s.)
Bazelon also presents Posner’s alternative argument that there would be an invasion of privacy even if it were impossible to determine a patient’s identity. Posner’s argument—extrapolated hastily and unconvincingly from his “analogy to nude pictures of a woman on the Internet, shorn of identifying details”—nicely illustrates his assertion in his new book How Judges Think that “analogies cannot resolve legal disputes intelligently.” (I critique Posner’s book in this series of posts— parts 1, 2, 3, 4, 5, 6 and 7.) In any event, any threat to privacy interests would again have to be weighed against the anticipated benefits from compliance with the subpoena.
3. There’s ample further reason to believe that concerns over patient privacy are misplaced and hyperbolic. In particular, the 2003 records from the Kansas abortion clinic have previously been made available to prosecutors, and no one has alleged that any patient has been identified from those records. As Phill Kline, the former state attorney general and current district attorney who is the supposed leading villain in Bazelon’s piece, has written, “Five years after the investigation started, with scores of criminal charges filed, not one patient has been identified.”
So who’s running amok?