Mona Charen

"The Justice Department has expanded its demands for private medical records of abortion patients, issuing subpoenas this week for hundreds of files from six Planned Parenthood affiliates ..." Or that's the Washington Post's take, anyway -- there goes that sinister Justice Department under John Ashcroft, attempting to reveal "private medical records."

Actually, the Justice Department is doing nothing of the kind. You'd have to read down further in the story to discover that Justice had "agreed in court documents ... that any individual information, including names and Social Security numbers, would be removed before the records were given to the government." Well, that makes all the difference doesn't it?

Medical records are used every day in litigation around the country. When the safety of particular drugs or medical devices is litigated, or a company is accused of polluting a stream, or someone sues tobacco companies over "second hand smoke," medical records are key evidence. They are provided all the time, with identifying information expunged.

But the plaintiffs who are suing to have the Partial Birth Abortion Ban Act of 2003 declared unconstitutional are making an interesting demand. The National Abortion Federation and Planned Parenthood are arguing that the law is unconstitutional because it does not contain a "health exception" (the law does have a "life of the mother" exception). Doctors sympathetic to their side will argue that the procedure is sometimes medically necessary and that they have performed such abortions on women in order to preserve their health.

If this is true, it is news, because Congress held hearings for several years considering this ban and specifically found that "a moral, medical and ethical consensus exists that the practice of performing a partial-birth abortion ... is a gruesome and inhumane procedure that is never medically necessary and should be prohibited." If Planned Parenthood's doctors are going to testify as experts that the procedure is medically necessary, then they ought to provide the medical records to substantiate their case.

While a federal judge in California has obligingly refused to order the plaintiffs to produce the medical records, Judge Richard Casey in New York saw things quite differently. Addressing lawyers for the National Abortion Federation, he said: "They didn't have to be plaintiffs. ... You have brought this lawsuit. I will not -- hear me out loud and clear -- I will not let the doctors hide, not let the doctors hide behind the shield of the hospital. Is that clear?"

Mona Charen

Mona Charen is a syndicated columnist, political analyst and author of Do-Gooders: How Liberals Hurt Those They Claim to Help .
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