Private No More

by Jon Mandle on February 12, 2004

The New York Times reports that “The Justice Department is demanding that at least six hospitals … turn over hundreds of patient medical records on certain abortions performed there.” This is necessary, they claim, in order to defend the new prohibition on “partial birth” abortions. This is bad enough, since as David Seldin, a spokesman for Naral Pro-Choice America, puts it: “This notion of John Ashcroft poring over medical records in a fairly unprecedented type of fishing expedition is exactly the type of privacy invasion that worries people.”

But the real news comes in paragraph 15, where we learn that the Justice Department argued that in light of “modern medical practice” and the growth of third party insurers, “individuals no longer possess a reasonable expectation that their histories will remain completely confidential.”



Jeremy Osner 02.12.04 at 7:04 pm

I noticed that too — it immediately made me start pondering the feasibility of going “off the grid” — alas just about nil for me at the moment, still, enough of this kind of thing…


Robert Lyman 02.12.04 at 7:27 pm

Pretty creepy action by Justice.

But…it isn’t so far from the notion that your bank and phone records aren’t private because you “share” them with the bank and phone company. That view has been ratified by the Supreme Court; the cops don’t need a warrant to peek at your bank accounts. I happen to think that view of privacy is wrong, but Justice is on pretty solid precedential ground. After all, you “share” your medical records with an insurance company.

Of course, government-run health care will make this problem about 100 times worse by removing the private intermediaries with at least a minimal incentive to fight back, which makes me wonder why some people who worry about privacy are so gung-ho for single-payer. This doesn’t prove single-payer is a bad idea, but it is a strike agaisnt it which is rarely addressed.


Maria 02.12.04 at 7:28 pm

That sentence jumped out at me too. the implication seems to be that because individuals are losing their privacy in other ways (which they cannot control), they ought therefore to be robbed of it all. bizaare. It doesn’t take a genius to spot the slippery slope here.

But the judge’s tetchiness is minor compared to the fact that the DoJ is conducting a witchhunt, demanding the most private type of information imaginable, and implying that ideologically charged lawyers can judge better than the doctors in question what type of procedure was required. Who are the DoJ planning to prosecute – patients? Doctors? This jack-boot operation has all the hallmarks of an Ashcroft-sponsored initiative.

I hope the ACLU’s reproductive rights project jumps all over it.


Maria 02.12.04 at 7:38 pm

Robert, without sparking off a debate about publicly provided healthcare, I think the problem isn’t about who pays the bills, but who has access to what information and under what circumstances. The real difficulty is that the US has effectively no data protection (medical privacy legislation stateside seems to do the opposite of protecting privacy).

For instance, in the EU, individuals’ medical data is subject to extra-strong protectionmaking it extremely difficult to share with a third partie unless life or health are at stake. The fact that the government picks up the tab for everyone’s healthcare in no way allows them to snoop through everyone’s record. Though there are of course opt-outs for criminal investigations, these can generally be employed only to investigate specific charges, not to indulge in fishing expeditions like the DoJ i doing.

Not to nit-pick – I’m as appalled by this as you are – but from my (European) perspective, the problem is a lack of data protection, and it shouldn’t be worse if more healthcare was publicly funded. I don’t see that HMOs have much incentive to protect their clients’ privacy, but maybe I don’t have the whole picture.


Robert Lyman 02.12.04 at 7:51 pm


Note from the article: it is the hospitals themselves which are in court fighting to protect the privacy of their patients. If the hospitals were Federal-government-owned, or if their government payment was made contingent on turning over records (and that sort of condition could almost certainly be imposed without Constitutional problems), they would do so like a shot.

HMOs have some market incentive to protect privacy because customers can withdraw their business; if you can’t withdraw your business because you aren’t actually the one paying, then that incentive, however weak, disappears completely.

I don’t doubt that good, strong, statutory controls on the sharing of data are possible, or that they exist in some parts of the world. But as you correctly point out, medical “privacy” legislation in the US is often anything but what its name suggests.

I am quite cynical about the abuse of power–just look at this article! So, too, are many of the people who advocate single-payer health care. I’m not saying that this issue is dispositive of the healthcare question, I’m asking those who support both strong privacy protection and single-payer to explain why this kind of overreach won’t be dramatically easier and more common under a single-payer regime.


Mike Krempasky 02.12.04 at 8:10 pm

One thing I missed – is it even possible to request non-identifiable patient records? I mean, if they really just want to see the circumstances of these procedures, wouldn’t it be ok to just get the circumstances without tying each case to an identifiable individual?

Pardon my medical illiteracy – it just seems like a simple thing. Then again, I’m not even sure if you can enough details about the case *without* identifying people.


yami 02.12.04 at 8:57 pm

According to the article, the DoJ is oh-so-graciously allowing hospitals to remove names and other “identifiable information” from the records; in the text of the Chicago judge’s ruling (excerpts and a link to the full version are here), they reserve the right to request such details in the future. Naturally there’s a slight difference of opinion over what constitutes “identifiable” information – knowing a woman’s age, her children’s birthdates, and her state of residence isn’t quite as good as having her name and address, perhaps, but it seems like a good start to me.


emjaybee 02.12.04 at 9:19 pm

Robert: nonsense. If that were true, why does the EU have such strict laws? Or are you saying that countries with single-payer systems frequently cave and turn over records? Because I would like to see citations for that.

As for a hospital’s reasons to protect patient confidentiality, I can think of one huge reason; protecting their right to prescribe/treat as they see fit without undue interference. No doctor is going to rush to have the government fish through their case files without a very good reason.

Not to mention that the human beings who run hospitals would also presumably be patients in a state run system–they would have a bit of self-interest in protecting patient privacy.


limberwulf 02.12.04 at 9:44 pm

The issue, emjaybee, is that the one who pays has the most sway over the hospitals. If that payer is only the government then it is too easy for them to change the laws, its only a law after all. The government is in charge of lawmaking. And dont tell me its the voter populace, because its not. Im not sure it would be better if it was. There has been comparatively little outcry over the loss of freedom in this country because so many people are making their decisions based on fear. The desire for security is always weak point you play on if you want to take peoples freedoms.

The idea of centralized health care is based on that same fear concept, the desire for a safety net. Governments always use fear to maintain their power. Increases in government are always fueled by fear. That goes for entitlements and invasion of privacy.


baa 02.12.04 at 11:28 pm

Heaven forfend the justice department should try to, you know, enforce the law.


tendancer 02.13.04 at 12:11 am

Does anyone know anything about HIPAA and how it might factor in here? Or do the new privacy rules for protecting patient records–issued by the US government–somehow not apply to the US government itself?


Detached Observer 02.13.04 at 1:59 am

Is this really such an outrage? When I go to a doctor, I expect my name to be kept confidential; but I also expect that the results of my treatment will be used, anonymously, in statistical surveys.

What, exactly, is so terrible in the justice department maintaining that patients do not expect anonymous data to be kept private?


tim 02.13.04 at 2:16 am

detached: (1) It’s not anonymous, it’s got the most immediate information (name/address) removed, but too much left. See above.

(2) the data are not to be used in statistical analysis for medical purposes, they are to be used to second-guess the original treatment. HIPAA rules allow minimal disclosure of information – admittedly more than I wish, but still limited – only enough to determine what treatment was carried out, so it can be paid accordingly. DOJ wants to go fishing, to use the history against the doctor. The more personal the better, presumably, they’re looking for evidence that it wasn’t “health of the mother” so much as “weak sinner avoiding inconvenience” or something similar.

(3) These are tactics used by defendants in tobacco lawsuits – harass the patient until they give in. I fully expect DoJ to follow up by trying to track down some women and get their testimony as to whether the doctor had done or said anything that would imply the procedure was not medically necessary.

(4) With the anthrax hoaxes sent to abortion clinics, one goal was to shame and frighten some women into not having the abortion, not daring to go to a clinic. Same with videotaping women walking into the clinic, and their license plates. Why do I not expect any better of Ashcroft?


Jon H 02.13.04 at 4:13 am

Meanwhile, US infant mortality is up!

Way to go, Bush!


Detached Observer 02.13.04 at 8:26 am


Basically, you are starting out with some pretty strong distrust of Ashcroft and the current justice department (which I share, by the way). But I believe this initiative ought to be judged on its face — rather than by speculating on the possible next step.

If this is indeed the first step to harassing abortion doctors — if the justice department will use the biographical information left in the records to try to track some patients and interview them — I will oppose that. I just don’t think its reasonable to analyze policy beginning with the assumption that Ashcroft cannot be trusted.

Call me naive.


Robert Lyman 02.13.04 at 2:55 pm


I’m not sure why you think the EU is relevant. What laws they do or don’t have in place doesn’t concern me. The point is that in the USA, the government is saying that you have no expectation of privacy in your medical records. The only reason they don’t have the records already is that non-government hospitals are resisting, something I think they would be dramatically less likely to do if we were in a single payer system.

If, before the enactment of single-payer health care, the US gets good strong privacy protection, then my objection will evaporate.

Tim, D.O.:

I personally don’t think that this particular action is deeply illegitimage: the doctors claim that they perform a particular type of abortion because it is medically necessry. The Justice Department wants to review the documents involved before they have to litigate these two claims. That’s fair enough. And the mechanism of the subpoena traditionally provides less privacy protection than, for instance, search warrants.

But the claim that we don’t have an expectation of privacy in our medical records is a horrible precedent. They seem to be angling to treat medical records like bank records, and I can’t stomach that.

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