Ashcroft v. Reasonable Expectations of Privacy

by on February 13th, 2004

I meant to get to this travesty yesterday but I had to go buy a violin.

That having been accomplished, let’s have a look at what (according to the story) Attorney General Ashcroft has wrought:

The Justice Department is demanding that at least six hospitals in New York City, Philadelphia and elsewhere turn over hundreds of patient medical records on certain abortions performed there.

Lawyers for the department say they need the records to defend a new law that prohibits what opponents call partial-birth abortions. []

The department wants to examine the medical histories for what could amount to dozens of the doctors’ patients in the last three years to determine, in part, whether the procedure, known medically as intact dilation and extraction, was in fact medically necessary, government lawyers said.

Now here comes the really fun part:

The [Justice Department] said in its [earlier] unsuccessful effort to enforce [a] Northwestern [University Medical Center] subpoena that the demand for records did not “intrude on any significant privacy interest of the hospital’s patients” because the names and other identifiable information would be deleted.

And yet in what appears to be an immediate follow-up brief, Justice argued that “there is no federal common law” protecting physician-patient privilege, and that

[i]n light of “modern medical practice” and the growth of third-party insurers…”individuals no longer possess a reasonable expectation that their histories will remain completely confidential.” [Emphasis added.]

Unfortunately, there is no legal rule that serial briefs like these be read together to test for disingenuousness.

Side Note: The “reasonable expectation” language has a constitutional meaning. The Fourth Amendment protections against unreasonable searches apply only to searches that intrude upon an area in which a person has a “reasonable expectation of privacy.” By using such language, then, the Justice Department is arguing that Fourth Amendment protections simply don’t apply here.

Tadlow Windsor II