Ashcroft defends abortion subpoenas

NEW YORK -- Under fire from abortion-rights groups, Attorney General John Ashcroft insisted yesterday that doctor-patient privacy is not threatened by a government attempt to subpoena medical records in a lawsuit over the Partial-Birth Abortion Ban Act.

At stake are records documenting certain late-term abortions performed by doctors who have joined in a legal challenge of the disputed ban. President Bush signed the act into law last year.

Critics of the subpoenas accuse the Justice Department of trying to intimidate doctors and patients involved in the contested type of abortion.

At least six hospitals have been targeted by subpoenas, including facilities in New York and Michigan, which said they are weighing how to respond. Last week, a federal judge in Chicago blocked release of records from Northwestern Memorial Hospital; another judge is considering a similar request from Hahnemann University Hospital in Philadelphia.

Ashcroft said the Justice Department will accept the records in edited form, after deleting or masking any information that would identify a patient. Abortion-rights supporters nonetheless depicted the subpoenas as a dangerous intrusion into medical confidentiality.

"People's medical records should not be the tools of political operatives," said Representative Eliot Engel, Democrat of New York. "All Americans should have the right to visit their doctor and receive sound medical attention without the fear of Big Brother looking into those records."

The federal ban seeks to outlaw a procedure referred to by critics as partial-birth abortion and in medical terminology as "intact dilatation and extraction" -- or D&X.

During D&X, a fetus's legs and torso are pulled from the uterus before its skull is punctured. An estimated 2,200 to 5,000 such abortions are performed annually in the United States, out of 1.3 million total abortions.

The doctors targeted by the subpoenas have contended in lawsuits that the ban is unconstitutional because it is overly broad and lacks any exemption for a woman's health.

Ashcroft, at a news conference in Washington, said the subpoenas were needed to enable the government to rebut these claims.

"The Congress has enacted a law with the president's signature that outlaws this terrible practice," Ashcroft said. "We sought from the judge authority to get medical records to find out whether indeed the allegation by the plaintiffs, that it's medically necessary, is really a fact."

In Chicago, the Justice Department sought medical records from Northwestern Memorial Hospital on abortions performed by Dr. John Hammond.

US District Judge Charles Kocoras quashed the subpoena, saying Illinois' medical privacy law superseded the government's need for the records. Kocoras said patients' privacy could be jeopardized even if their names were deleted, because their prior medical history would still be disclosed.

The Justice Department is considering a possible appeal of Kocoras's ruling, and says the doctors opposing the ban should be blocked from testifying in their lawsuit unless their records are turned over. US District Judge Richard Conway Casey of New York, who in November temporarily blocked the government from enforcing the ban, has supported the Justice Department's efforts to obtain the records.

At the University of Michigan Medical Center, spokeswoman Kallie Michels said no records have been turned over yet. She said the university is waiting to see a new court order requesting data that does not identify patients.

A subpoena also was issued to New York-Presbyterian Hospital.

"We place a very high value on our patients' privacy and we are exploring our options in that context," said spokeswoman Myrna Manners.

Another New York hospital, St. Luke's-Roosevelt, also was subpoenaed but told the Justice Department that none of the abortion procedures at issue had been done there in the past couple of years.

Some of the abortion-rights groups engaged in the litigation -- including the American Civil Liberties Union and the Planned Parenthood Federation of America -- declined to comment.

But the chairman of an allied organization, Wendy Chavkin of Physicians for Reproductive Health Choice, said the subpoenas were cause for grave concern.

"Not only is this Justice Department and this attorney general profoundly antiabortion, but they have a questionable commitment to civil liberties," Chavkin said.

She said the subpoenas seemed to be a tactic of intimidation comparable to a subpoena issued recently in a federal grand jury probe ordering Drake University to turn over names of certain anti-war activists.

Dr. Joe DeCook, vice president of the antiabortion American Association of Pro-Life Obstetricians and Gynecologists, which opposes the D&X procedure, said the government should be entitled to get medical records as it enforces federal laws.

"If there's a law, it should be followed," DeCook said. "It can be enforced without embarrassing the woman by dragging her name out in public."