News Intelligence Analysis
April 25, 2004
OP-ED CONTRIBUTOR
The Issue That Never Went Away
By WILLIAM SALETAN
WASHINGTON
Tens of thousands of people are expected to descend on Washington today for the first major abortion-rights march in more than a decade. With chants and placards, they will warn that Roe v. Wade is at risk. Most Americans have heard this alarm so many times that they've tuned it out. They can't imagine going back to a world in which women's medical records are introduced at trials of doctors to determine whether the abortions they performed were necessary.
But that world is already upon us. For months, in federal courts in several states, abortion has literally been on trial. The catalyst for these trials is the Partial-Birth Abortion Ban Act, which President Bush signed into law last fall. Abortion-rights supporters, citing a four-year-old Supreme Court ruling on a similar statute in Nebraska, argue that some of the procedures banned by the new law may sometimes be medically necessary. The Justice Department, citing Congressional "findings of fact" to the contrary, disagrees.
To prove its case, the Justice Department says it needs to look at the evidence: women's medical records. It has subpoenaed thousands of records related to abortions at six metropolitan hospital centers and six Planned Parenthood centers around the country. The subpoenas covered all second-trimester abortions involving medical complications or chemical injections into the womb. They also sought the name of every doctor who had performed an abortion at any of the hospitals.
Aren't such records private? Not according to the Justice Department. Its court filings claim that federal law "does not recognize a physician-patient privilege" and that patients "no longer possess a reasonable expectation that their histories will remain completely confidential." In some of these trials, judges have rejected these arguments. In others, judges have ordered hospitals to hand over the records. Last week, a New York hospital became the first to be fined for refusing to comply.
Attorney General John Ashcroft says the subpoenas respect patients' privacy by allowing hospitals to black out "identifying characteristics." An assistant United States attorney explained: "The government is not interested certainly in the private names and addresses and Social Security numbers of these patients. That is not the purpose here."
Indeed, that is not the purpose. The purpose of these inquiries is to try to prove that the so-called partial-birth procedure is never medically necessary, because that's what Congress asserts and the plaintiffs deny. But once this question is resolved, the next round of subpoenas will have a different purpose. It won't be to determine whether partial-birth abortion is ever necessary. It will be to determine whether each partial-birth abortion was necessary.
If the ban is upheld, any doctor found to have performed the procedure will be subject to a two-year prison term unless he or she can prove that the procedure was "necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury." To settle that question, the court will need details about the patient.
Alternatively, if the ban is struck down, Congress will have to add to it what the Supreme Court demanded four years ago: a clause allowing the procedure when necessary to protect the woman's health. That, too, will require details about the patient.
As Mr. Ashcroft puts it, "If the central issue in the case, an issue raised by those who brought the case, is medical necessity, we need to look at medical records to find out if indeed there was medical necessity." That's why the government subpoenaed the records of the doctors who challenged the law. And that's why the government will subpoena the records of any doctor who, having been charged with performing a partial-birth abortion, argues that the procedure was medically necessary. This is what it takes to enforce an abortion ban.
That's the lesson of these trials. For years, Republicans have used Congress and the White House to showcase the ugliness of late-term abortions. The public, naturally repelled, endorsed the so-called partial-birth ban, and Congress enacted it.
But an abortion ban isn't just a moral statement. It's a pledge to prosecute, and prosecution introduces a different kind of ugliness: the public investigation of personal tragedies. That's the ugliness that lies ahead. If Americans won't take that warning from today's marchers, maybe they'll take it from John Ashcroft.
Copyright 2004 The New York Times Company
William Saletan, chief political correspondent for Slate, is the author of "Bearing Right: How Conservatives Won the Abortion War."
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