An intimate assault

March 03, 2005

KANSAS Attorney General Phill Kline says he is following the letter of state laws by secretly requesting complete medical records for nearly 90 women and girls who obtained abortions in two clinics in 2003. But his public reasons are illogical, his motives are suspect and his actions could constitute a breach of federal medical privacy laws.

Compounding the highly questionable nature of his request is that it was made with such stealth. All the involved parties are under a gag order; the clinics were told not to tell their patients that their records may be opened. That's a clear violation of the federal law that patients be notified whenever any stranger wishes to look at records.

There also is no reason not to preserve patients' privacy. Kansas has strict requirements for abortions performed when a woman has passed the 22nd week of pregnancy, and some of the records subpoenaed document such cases; perhaps the state has other evidence suggesting the clinics are not following the law. If so, it is irrelevant who the woman is -- it's the doctor who would be charged. Identifying information should be redacted, as it is with similar cases elsewhere.

Other subpoenaed files involve girls who obtained abortions; the attorney general says every such case is evidence of the crime of child rape, which is debatable. Nevertheless, the clinics already are required to report all cases of suspected child assault, both because they are abortion clinics and because that is required of all doctors. Local police say they do get such reports and investigate them. Mr. Kline did not ask hospitals for live birth or miscarriage records of girls under the age of 16, though those also meet his criteria for rape. That's a powerful indication that this may not be his real reason. It's more likely that Mr. Kline is continuing his campaign of harassment toward the state's abortion providers, as well as the women who go to them for care.

Last year, when U.S. Attorney General John Ashcroft tried using subpoena power to obtain hospital records in another abortion case, the appeals court said his actions trampled on privacy rights. Mr. Kline's attempt should meet the same fate.

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