Put up or shut up

Posted: Mar 12, 2004 12:00 AM

"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?"

It is really quite nervy to argue that a federal law ought to be overturned by the courts but decline to provide evidence to support the claim. The plaintiffs obviously know that the privacy claim is bogus. No names, addresses or any other identifying information will be attached to the medical records. It will simply state that Patient X was 20 years old, and was 23 weeks pregnant. Relevant aspects of her health profile will be included, like blood pressure, previous C-sections and other pieces of history. But unless the Department of Justice has at least those facts, it cannot possibly determine how to frame its response to this evidence.

It isn't really surprising that Planned Parenthood and the abortion industry are attempting to hide the facts. They've been doing so ever since the existence of the procedure became known. They first claimed that no such procedure existed. When that collapsed, they argued that the fetus was killed by the anesthesia administered to the mother. When anesthesiologists protested, they admitted that this wasn't true -- but that the procedure was so rarely performed it wasn't worth talking about. And when that lie was exposed, they urged that it was only done to save the life of the mother or in cases of severe fetal deformity. None of those statements was true.

Now they are saying partial-birth abortions are being performed to save the health of the mother. Let's see the proof.

Laymen may wonder why the procedure is done at all. Consult Dr. Martin Haskell's paper presented to a meeting of the National Abortion Federation in 1992. Haskell was the originator of the procedure. It was designed, he said, because it could be done in a doctor's office under local anesthesia, rather than in a hospital (and many hospitals do not permit second- or third-term abortions). Second, it was quicker (for the doctor) than dismemberment abortions, which sometimes took "45 minutes." Third, "most surgeons find dismemberment at 20 weeks and beyond to be difficult due to the toughness of fetal tissues at this stage of development."

We know they don't want to talk about what really happens in an abortion. But refusing to provide redacted medical records to the court is chutzpah on stilts.