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. In most cases, she said, the group does not name patients or publish photographs of them.
(Sullenger served two years in federal prison for conspiring to bomb a California abortion clinic in the 1980s. Today, the Operation Rescue website says, she denounces violence.)
The leaked information is used by activists to bolster complaints they submit to health agencies against abortion providers, sometimes without patients’ knowledge. Operation Rescue estimates that it has 100 complaints currently pending in different states.
Sullenger said it shouldn’t be left solely to patients to bring such matters forward. “If someone else sees that there may be an issue, we have a public duty to report things like that.”
Sometimes, complaints have brought violations to light.
In Indiana, the group Right to Life obtained thousands of pregnancy termination reports from the state health department. The records are nearly identical to those requested by Bloedow in Washington, but Indiana granted the request, redacting only a few fields.
After analyzing the data, the group filed a litany of complaints with the state, alleging that doctors were violating abortion record-keeping laws, including failure to report abortions involving minors in a timely manner. Four physicians now face disciplinary proceedings.
Such cases can be pursued without violating the privacy of patients, said Cathie Humbarger, vice president of policy enforcement for Indiana Right to Life. “We’re not aware of one situation where someone identified a patient by looking at a termination of pregnancy report after it was released by the state,” Humbarger said in an email sent through a spokeswoman.
One Indiana doctor, who has acknowledged making an “honest mistake” involving paperwork, faces a misdemeanor criminal charge.
His attorneys have argued that he did not knowingly violate the law and unsuccessfully sought to have the medical board case dismissed before a hearing.
But there have been other instances in which anti-abortion groups have filed unfounded complaints, said Janet Crepps, a senior counsel for the Center for Reproductive Rights. The resulting investigations caused additional details about the patients to be made public, she said.
Operation Rescue and another group filed complaints with New Mexico’s medical board against a doctor who works at an Albuquerque clinic after a patient experienced a complication and was taken to a hospital, and they obtained a recording of the 911 call.
Though the board ultimately exonerated the doctor, many details about the patient 2014 her age and her mental state, in addition to her initials and where she lived 2014 came out in a transcript of a hearing.
“The woman clearly did not want her privacy violated,” said Vicki Saporta, chief executive of the National Abortion Federation, a professional association for abortion providers. “She didn’t want to talk to anybody.”
After a Death, All Bets Are Off
Anti-abortion groups typically tread carefully when it comes to living patients.
Operation Rescue’s website in March published a photograph of a woman being wheeled out of a St. Louis clinic on a stretcher but put a black bar over her eyes to obscure her identity.
When a patient dies, however, it can be a different story.
In 2013, a different abortion opponent wrote on her blog that an “impeccable informant” told her the identity of a kindergarten teacher who had died after a late-term abortion at a clinic in Germantown, Maryland. Groups including Operation Rescue quickly got the word out, using the woman’s name and photos from social-media sites.
The doctor who performed the abortion, LeRoy Carhart, has been a target for protesters because he does late-term abortions that most other practitioners won’t. Though abortion opponents blame him for the woman’s death, the Maryland medical board found no deficiencies in his care for her.
Saporta said the woman’s family did not authorize the release of her identity.
Sullenger said she sympathized with the family’s loss but not its demand for privacy. “Look, once a person dies, they don’t have any privacy anymore,” she said. “I think they should have been more concerned about it happening to another person.”
Contacted recently, the woman’s mother declined to comment.
All They Cared About Was Judging Me’
For some patients, the grief they already feel with the end of a pregnancy is compounded by the loss of privacy.
Alicia, who spoke on the condition that only her first name be used, had an abortion in November 2013 after her OB/GYN told her and her husband that the fetus had a severe form of spina bifida, a debilitating birth defect.
During the procedure, she began bleeding heavily from a tear in her uterus. The clinic, located in Bellevue, south of Omaha, summoned an ambulance, which took Alicia to the hospital.
Someone protesting outside the clinic took a photo of the ambulance, and Operation Rescue’s website reported the incident, though it did not know Alicia’s identity.
Within weeks, the Nebraska health department subpoenaed Alicia’s records from the clinic. Alicia had not complained, but the agency had received a tip, she later learned.
“All this happened because I was in the clinic having a legal abortion,” she said. “All they cared about was judging me … and building evidence for their case.”
Alicia said while the complication was scary at the time, it had been explained to her in advance as a possibility. She said she didn’t blame her doctor, Carhart, who practices in Nebraska as well as in Maryland.
In an interview, Carhart said that several of his patients have had their privacy violated.
After subpoenaing Alicia’s records, Nebraska’s health department disciplined a nurse at Carhart’s clinic for a pattern of negligence and unprofessional conduct involving a dozen patients, including Alicia.
Alicia said she asked state officials to identify who had filed the complaint that provided her name to state officials. To her amazement, she was told that information was confidential.
Marla Augustine, a health department spokeswoman, said in an email that patients are not notified if their records are examined “to protect the process from being contaminated.” For instance, a patient so notified could tip off a health provider about the existence of an investigation. That said, Augustine added: “The confidentiality of a patient’s medical records is very important to us, and a paramount consideration.”
Her explanation provides little comfort to Alicia.
“I don’t understand why whoever did this gets to be anonymous while I was the one who was supposed to not have my information leaked,” she said. “Why does that person get more rights than me?”
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