Lone Star state abortion opponents are circumventing HIPAA laws to get personal info from medical records, to intimidate providers and patients. And it's not the first time we've seen this.
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Right now thousands of people who have obtained health-care services at four different Planned Parenthood clinics in Texas within the past five years may be wondering: Does the State Department of Health know their personal, private medical information? The answer to that question, unfortunately, is far more complicated than a simple yes or no.
During the last week, the state of Texas served subpoenas to Planned Parenthoods in Houston, Dallas, San Antonio, and Brownsville. The impetus, according to the Texas Health and Human Services Commission’s Office of Inspector General (HHSC IG) was to obtain medical records to investigate instances of patients who donated fetal tissue after a procedure. The breadth of the files being demanded, however, has clinic officials believing there is far more being examined than simply that.
The material being asked for involves “thousands of pages of documents, including patients’ records and employees’ home addresses and telephone numbers,” according to the New York Times, which adds that, “some, but not all, of the extensive records sought by the state related specifically to abortion.”
Planned Parenthood has responded by calling the request a “politically motivated fishing expedition.” If that is true, it wouldn’t be the first time such a thing has happened.
Recall what happened in Kansas, while the state was trying to close down Dr. George Tiller’s medical practice. Dr. Tiller—one of the few abortion providers willing to offer services to those who requested a third-trimester procedure—was under intense local scrutiny as anti-abortion activists, both on the ground and in the government, worked together to bring legal charges against him. Those efforts escalated when Kansas Attorney General Phill Kline demanded that Dr. Tiller provide his abortion patients’ medical records. Kline intended to use the records to show that the procedures Tiller performed after the state’s gestational cut-off could be proven not medically necessary, and therefore illegal. As part of the request for hundreds of patient records, Kline also wanted the names, addresses, and phone numbers of Dr. Tiller’s employees and colleagues.
Abortion opponents were so eager to seize the records, believing they were on the verge of finding something that could not only help close Dr. Tiller’s clinic but potentially put him in jail, that they seemed completely unconcerned about patient privacy and ensuing potential fallout. “I think the grand jury should run in and grab those medical records,” said Troy Newman, president of Operation Rescue, in 2008. “This is the frontline for abortion in America.” Today, Newman serves on the board of Center for Medical Progress, whose undercover videos were the impetus for the ongoing state and federal investigations of Planned Parenthood.
Kansas abortion opponents were still attempting to, at the very least, get Dr. Tiller’s license revoked through the State Board of Health when extremist Scott Roeder murdered the doctor in May 2009. But the impact of medical records being seized for fishing expeditions can still be felt today by Dr. Ann Kristin Neuhaus, who lost her own ability to practice medicine in 2011 when the Kansas Board of Healing Arts used 11 of Dr. Tiller’s abortion cases where she acted as the consultant who affirmed the abortions were medically necessary and determined that her assessment was wrong.
Dr. Neuhaus’s story demonstrates why colleagues and employees may have reason professionally to be concerned if a state decides to go on a fishing expedition with medical records. Stories about being targeted at home either by individual abortion opponents or as part of a larger political campaign shows why they may be concerned about providing their names and addresses as part of a so far mostly nebulous “Medicaid” investigation, too.
The question for many is how demanding patient records at a medical clinic can be legal in the first place. After all, doesn’t a patient have medical privacy, and shouldn’t the Health Insurance Portability and Accountability Act (HIPAA) make these records impossible for strangers to access? Not so much, as the Daily Caller explains. “Congress passed HIPAA amid reports of increasing Medicare fraud, but the legislation also provided for first time ever specific authorization for judgeless administrative subpoenas to be used in criminal law-enforcement pursuits,” writes Kathryn Watson. That includes the ongoing investigations triggered by the Center for Medical Progress’s surreptitiously recorded “sting” videos, even though so far no state has found any actual illegalities to prosecute.
Medical providers are obviously going to do everything they can within their power to ensure that the files are redacted enough to protect the identity of patients wherever they can. Still, there are undoubtedly some people who’ve had an abortion who may be wondering if redaction can be enough. While names will likely be protected, other identifying details may not, and patients are unlikely to know who will see their redacted files.
Of course that’s a feature, not a flaw, for those abortion protesters who take pictures and videos of patients, or collect the license plate numbers of those who park in a clinic parking lot. To them, forcing someone who is about to undergo an abortion to wonder who may find out about their actions has always been used as a deterrent to stop patients from entering a clinic, even if it isn’t a protester’s primary goal.
A demand for records—especially an extensive demand such as the one apparently occurring in Texas—is just as much about serving as a warning to future providers and patients as it is about casting as wide a net as possible in the hopes of finding some sort of error or deviance to potentially prosecute. For doctors, it’s a warning that the act of performing an abortion will inevitably put you under a microscope, where a mistake made in another medical profession that would likely be overlooked could in this case turn into a fine, a loss of a medical license, or worse. For patients, it’s an active reminder that someone, somewhere could find out about your medical past, and that there is always the chance that information could get out. That’s an especially alarming scenario for the women of Texas, who are already learning the hard way that politics will often trump their health and safety, as the state cuts off family-planning services, refuses to expand Medicaid for low income residents, and will even arrest an undocumented mother while she is visiting her gynecologist.
Subpoenaing medical records is just the latest salvo of the state of Texas’s vendetta against Planned Parenthood, and regardless of what the health department finds, the state will most likely be successful in frightening some patients and medical professionals away from the clinics. But like every other political attack in the state, it will do nothing to stop the need for reproductive health services, and instead it will just continue to put those services further out of reach for those who need it. Even worse, if it follows the same pattern we saw in Kansas, this could be the action that enflames an extremist to take “ending abortion” into his or her own hands.