Activists Pursue Private Abortion Details Using Public Records Laws
by Charles Ornstein ProPublica, Aug. 25, 2015, 7 p.m.
This story was co-published with the Washington Post.
A few years back, Jonathan Bloedow filed a series of requests under Washington state’s Public Records Act asking for details on pregnancies terminated at abortion clinics around the state.
For every abortion, he wanted information on the woman’s age and race, where she lived, how long she had been pregnant and how past pregnancies had ended. He also wanted to know about any complications, but he didn’t ask for names. This is all information that Washington’s health department, as those in other states, collects to track vital statistics.
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Bloedow, 43, isn’t a public health researcher, a traditional journalist or a clinic owner. He’s an anti-abortion activist who had previously sued Planned Parenthood, accusing the group of overcharging the government for contraception.
“There are stories in the data that bring home the reality of what these people do,” Bloedow, a software engineer, said in an email. “Any good investigator knows that when you’re dealing with hard-core criminals, if you 2018keep crawling through their garbage’ some evidence of criminality and corruption will turn up.”
The health department had already given him data for one provider, he said, and was on the verge of turning over more information when Planned Parenthood and other clinics sued, arguing that releasing the records would violate health department rules and privacy laws.
The legal skirmish, and others like it nationwide, reveal a quiet evolution in the nation’s abortion battle. Increasingly, abortion opponents are pursuing personal and medical information on women undergoing abortions and the doctors who perform them. They often file complaints with authorities based on what they learn.
Abortion opponents insist their tactics are generally not aimed at identifying women who have abortions but to uncover incidents involving patients who may have been harmed by poor care or underage girls who may have been sexually abused. They say they are trying to prevent situations such as the one involving Philadelphia abortion doctor Kermit Gosnell, who was convicted in 2013 of murdering three babies after botched abortions and of involuntary manslaughter in the death of a woman.
“This is about saving the lives of women,” said Cheryl Sullenger, senior policy adviser for the anti-abortion group Operation Rescue, which is based in Wichita, Kansas. “A lot of people don’t understand that. It’s a systemic problem within the abortion industry today for abortion providers to cut corners on patient care.”
But those who support abortion rights say the ultimate aim of these activists is to reduce abortions by intimidating women and their doctors 2014 using the loss of privacy as a weapon. They say their opponents are amassing a wealth of details that could be used to identify patients 2014 turning women, and their doctors, into pariahs or even targets. In a New Mexico case, a woman’s initials and where she lived became public as part of an investigation triggered by a complaint from activists.
“I don’t think there’s any margin for error here,” said Laura Einstein, chief legal counsel of Planned Parenthood of the Great Northwest and the Hawaiian Islands, which challenged Bloedow’s request. “These women came to a private health center to have a private health procedure, and that’s just not anybody’s business.”
In recent years, abortion opponents have become experts at accessing public records such as recordings of 911 calls, autopsy reports and documents from state health departments and medical boards, then publishing the information on their websites.
Some activists have dug through clinics’ trash to find privacy violations by abortion providers 2014 such as patient records tossed in dumpsters 2014 and used them to file complaints with regulators.
The fight has landed in courts nationwide as the two sides tussle over which information about abortions should be public and which should remain confidential under privacy laws.
In St. Louis, for example, an Operation Rescue staff member is suing the city’s fire department for 911 call logs and recordings from a Planned Parenthood clinic. The city says releasing the requested information would violate a federal patient privacy law.
In Louisiana, a critic of abortion sued the state last year to get data on abortions performed on minors, their ages and the ages of the listed biological fathers, as well as any complications that occurred. The state said the records were exempt from disclosure, and a judge agreed.
In Bloedow’s case, a Washington court sided with the clinics and prohibited the release of the records he sought. In May, a state appeals court upheld that injunction.
“The public has no legitimate interest in the health care or pregnancy history of any individual woman or where any particular abortion was performed,” the appeals court ruled.
A Tussle Over Privacy
At its core, the Supreme Court’s 1973 decision in Roe v. Wade rested on the right to privacy. The court determined that this right 2014 guaranteed under the due process clause of the 14th Amendment 2014 extended to a woman’s decision to have an abortion.
With the 1996 passage of the Health Insurance Portability and Accountability Act, known as HIPAA, additional federal privacy protections took hold for patients.
When Planned Parenthood officials were recently caught on video discussing the sale of donated fetal tissue, the organization invoked the potential violations of patient privacy to protest the surreptitious filming.
Still, the extent of the privacy guaranteed to those who seek abortions has been tested repeatedly.
In 2003, after Congress passed the Partial-Birth Abortion Ban, abortion providers sued to challenge its constitutionality. The Justice Department, as part of its defense of the law, sought patient records from a Chicago hospital, where a doctor was one of the plaintiffs’ expert witnesses.
Though patients’ names would have been redacted, a federal appeals court denied the request, citing privacy concerns.
“Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her,” the court wrote. “She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.”
Around the same time, at least two state attorneys general, both abortion opponents, pressed for similar patient records. The attorney general of Kansas succeeded in part, while his counterpart in Indiana failed.
Digging For Dirt
More recently, it has been activists like Sullenger and Bloedow seeking information about abortion providers and their patients.
Coast to coast, they appear to be drawing from an unofficial playbook: Some wait outside clinics, tracking or taking photos of patients’ and staffers’ license plates and ambulances, if called.
They not only mine public records but also collect information leaked by sympathetic health care workers 2014 for example, emergency-room doctors and ambulance drivers 2014 who are required to keep patient information confidential under HIPAA. The law, however, doesn’t apply to advocacy groups.
Sullenger acknowledges receiving private patient information and said it helps to confirm when patients have suffered complications or died.