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Ashcroft's Fear Tactic

March 19, 2004

Of all the moments when a patient consults with a doctor, few could be sadder than when a woman concludes she must end a pregnancy. Sadder still is when this occurs after the first trimester, and it's true that one technique used in late-term abortions can be grim. With anguished deliberation, the American people and the judiciary have decided that women should have the right to make a choice. That discussions and records about abortion should remain confidential would seem evident. So why can't Atty. Gen. John Ashcroft get this?

Justice Department lawyers have marched into court demanding that doctors and hospitals in Los Angeles, San Diego and four other cities hand over the medical records of hundreds of women who have undergone abortions -- no matter what their reason, the technique used or the stage of their pregnancy. Several judges have rebuffed this request, as they should.

Here's why the Bush administration should halt its repugnant effort to invade patient privacy. Simply put, there's little that Ashcroft's lawyers could learn from the medical records that would help him defend the late-term ban Congress passed last year. Though government lawyers insist that women's identities can be protected through expunging the files, the demand for the data is chilling and unnecessary.

The women broke no laws and did not consent in any way to disclosure of this most intimate information.

The documents, typically, include the time a procedure began and ended and any complications. But the records, experts say, don't get at the detail that Bush officials want -- the medical judgment behind a doctor's choice of one abortion technique over another.

Let's call the subpoenas what they are, another attempt to get around the Roe vs. Wade decision -- a push by anti-abortion advocates to force women and their doctors to prove why they need an abortion, particularly after 20 weeks. The Supreme Court has rejected that argument, most recently in 2000 by overturning a Nebraska ban similar to the one Congress passed. As it defends the latest ban, the administration, in effect, seeks to flip the burden on later-term procedures. They want the women and their doctors to prove the necessity of the abortions, to publicly parade the circumstances for all to judge.

This bald effort to intimidate doctors, hospitals and women sets an outrageous precedent. The data show that, as sensible people can appreciate, abortions remain, as intended, a rarity past 20 weeks. It's undertaken, as often as not, because the fetus has developed devastating deformities. For those women, the late-term ban compounds their heartbreak as it violates their right to make the decision that is right for them. If history is a guide, the Supreme Court will agree.

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