STATEMENT OF MONICA GOODLING, SPOKESWOMAN FOR THE JUSTICE DEPARTMENT, REGARDING THE SEVENTH CIRCUIT RULING IN THE PARTIAL-BIRTH ABORTION CASE:

“Next week, as trial begins in New York, Nebraska, and California, the Justice Department will work vigorously to defend the law prohibiting partial-birth abortions. The Department will be devoting all resources necessary to defend the bipartisan findings of Congress that this violent practice is unnecessary, as well as painful and cruel to the partially-born child. A bipartisan majority in Congress reached this conclusion after eight years of testimony from respected medical professionals who stated that partial-birth abortion is never medically necessary.

“In defending the law, the Department has made every attempt to ensure that sensitive patient information remains private by having the hospital delete any and all information that would identify specific patients before they released these records. The medical records sought would not contain any patient names, social security numbers, addresses, phone numbers, or other identifying information.

“As the dissent made clear, ‘Because the records will be redacted, they will not identify the individual. Nor is there a reasonable basis to believe that the information can be used to identify the individual.... as the government stressed at oral argument, it has no need for, nor desire to know, the individual identities of the patients.... none of the information -- not even the redacted non-identifying information -- will ever be made public, much less paraded in court or placed on the Internet... [T]he relevance here cannot be overstated: Congress made explicit findings that a partial-birth abortion is never medically necessary to protect a woman’s health. Yet, Dr. Hammond claims Congress is wrong... Dr. Hammond seeks to testify accordingly, and it is therefore imperative that the government be able to determine the veracity of his testimony. There is no better way than by determining if Dr. Hammond’s actual practice supports his testimony.... [T]he limited scope of the document request, and the government’s agreement to redact the records -- something not required by HIPPA -- if anything, refutes any questioning of the government’s motives or the court’s implication that the government is on a fishing expedition.... The court’s decision... comes at a cost to the truth of Congress’ findings that a partial-birth abortion is never necessary to protect a woman’s health and poses significant health risks, and to the constitutionality of such a law.’

“Just today, two other federal judges have said these records are appropriate for use in trial. Judge Casey, who is presiding over the trial in New York for which these records were sought, having received the opinion from the Seventh Circuit, just issued an order to New York Presbyterian Hospital ordering production of the redacted records by noon on Monday. Also, Judge Hamilton in San Francisco said earlier today that ‘those records (records of intact D&E and /or D&X) that clearly reflect that one of these procedures was used may be admitted.’”

Additional Background Information -- Language from the dissent includes the following:

“I disagree with the court’s conclusion that enforcing the subpoena creates an undue burden under Fed. R. Civ. P. 45(c)(3)(A)(iv). In passing HIPPA, Congress recognized a privacy interest only in “individually identifiable medical records” and not redacted medical records, and HIPPA preempts state law in this regard. The “de-identification” (redaction) of all identifying information from the medical records and the extensive protective order in place also eliminates any privacy interest in the records. Additionally, not only are the records in this case relevant, as the court acknowledges, but they are highly probative of the underlying issue. Finally, contrary to the court’s conclusion that quashing the subpoena occurs “at no substantial cost to federal substantive and procedural policy,” both suffer greatly.”

“Under HIPPA and the implementing regulations, there is no protected privacy interest in non-identifiable health information.”

“Of relevance here is 45 C.F.R. 164.512(e)(1)(i), which authorizes the disclosure of protected health information pursuant to a court order. In this case, the government obtained a court order authorizing the disclosure of the medical records. Under the regulations, such an order negates any need to redact identifying information. 2 45 C.F.R. § 164.512(e)(1)(i). Yet, as the government stressed at oral argument, it has no need for, nor desire to know, the individual identities of the patients. Therefore, it is only seeking the relevant redacted medical records. Such redacted records are afforded no privacy protection under HIPPA, logically so because the redacted records have no identifiably private information to expose. And although Illinois law has adopted an expansive view of privilege that includes redacted medical records, as the court recognizes, Illinois law does not govern this question. That should end the inquiry.”

“Nor is it reasonable to believe that the unidentified 45 women have “acquaintances... who will put two and two together, ‘out’ the 45 women, and thereby expose them to threats, humiliation, and obloquy.” Opinion at 9. In fact, there is no reason to believe that the women themselves have any idea that their records are among the few sought by the government in this case. But even if they knew, no one else ever would, because all of the information that could reasonably be used to identify them will be redacted, see 45 C.F.R. § 164.514(b)(2)(i), and none of the information --not even the redacted non-identifying information -- will ever be made public, much less paraded in court or placed on the Internet within the reach of ‘skillful Googlers.’”

“[T]he only way the government (and the trial judge) can assess Dr. Hammond’s contention that partial-birth abortions are medically necessary to protect the women’s health is to review the medical records of the patients with the conditions that Dr. Hammond referenced.”

“In fact, the relevance here cannot be overstated: Congress made explicit findings that a partial-birth abortion is never medically necessary to protect a women’s health. Yet, Dr. Hammond claims Congress is wrong... Dr. Hammond seeks to testify accordingly, and it is therefore imperative that the government be able to determine the veracity of his testimony. There is no better way than by determining if Dr. Hammond’s actual practice supports his testimony.”

“During oral argument, the government learned for the first time that there are only 45 records that satisfy its document request. Given that Dr. Hammond stated in his declaration that he performs, teaches or supervises about 300 abortions a year, and that the government sought the records for a two- to three-year time frame, it probably surprised the government to learn that there were only 45 relevant records, with the rest apparently unrelated to the mother’s or fetus’s health.”

“[T]he limited scope of the document request, and the government’s agreement to redact the records -- something not required by HIPPA -- if anything, refutes any questioning of the government’s motives or the court’s implication that the government is on a fishing expedition.”

“Under Rule 45, a court may quash a subpoena where it creates an undue burden. There is no such burden in this case because HIPPA establishes that there is no privacy interest in redacted records and those records are highly relevant to the constitutional challenge to the Partial Birth Abortion Ban Act. The only burden identified by the court seems to be a “potential psychological cost.”... [R]eliance on that as a burden in effect creates a privilege where none exists.”

“The court’s decision also comes at a substantial cost to the federal policy adopted by HIPPA. Lastly, and most significantly, it comes at a cost to the truth of Congress’ findings that a partial-birth abortion is never necessary to protect a woman’s health and poses significant health risks, and to the constitutionality of such a law.”

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