Justice Dept. Demands Abortion Records

AP ^ | 2/12/04 | DAVID CRARY

[<1/1,000,000th%]

Critics of the subpoenas accuse the Justice Department of trying to intimidate doctors and patients involved in the contested type of abortion.

Asking democrats for information about what they do is intimidation? Good thing they don't own guns.

[CalKat]

He already knows how many partial birth abortions are performed.

[Aeon Flux]

"Asking democrats for information about what they do is intimidation? Good thing they don't own guns."


Yes, but WE DO!

And at one point there will be a Democrat in office who has an anti-gun grassroot planted way up their bum, and Ashcroft has left a wide open entrance for a massive big gun grab.

[jwalsh07]

Actually, nobody knows how many PBA's are performed. Very few states require any reporting on it at all.

Second of all, the factors surrounding the PBA's are what is at issue. Age of the baby, health of the baby, reason for the abortion, method of the abortion etc. etc.

The Doctors filed suit, the state is entitled to discovery. That discovery can be accomplished without violating anybody's privacy rights. All patient info can and will be redacted.

[spunkets]

"Yes, the ban was passed, yet it is also restrained, therefore not a law right now.

It is law until the court declares it otherwise. It this case it will be the SCOTUS that makes the final judicial determination. In the mean time the feds are restraianed from enforcing it.

"Now, SHOULD the AG, use his/her powers be able to subpoenaed medical documents (or any personal or private documents) for evidence in a case *IF* no laws have been broken, except to be used as evidence to pass a law that has not yet come into effect?

With all the cautions you gave about thinking clearly, surely y'all ought to do so. Now go back to what I wrote and see if you can grasp it's meaning. Keep in mind that Ashcroft is the atty for the defense. The suit challenges the law itself that was created by Congress and signed by the President. Ashcroft will show that the law is Constitutional both in it's essense and in it's creation.

The plaintiffs brought suit and made certain claims based on the records. Ashcroft has the authority to subpoena all relevent records and docs related to the plaintiffs claims. You understand that right.

Here's an example:
The bank claims you claiming you owe them $100K. You say, "no I don't." The bank says, "yes you do". Now you need an atty. That's clear from your posts. Your atty tells the bank to bring it's records in regarding the contested claim. The bank says, "shove it, you can't invade my privacy." Now do you want your atty to subpoena the records, or just maintain the court's freeze on your account while you and the bank go back and forth with the, "no I don't."/"yes you do", until you die. Note the bank will replace their lawyer each time one dies of old age. Once you're dead, your kids if you have any are going to get the subpoena, the records, then go home with the cash.

"storm troopers ...they might be shooting that your rivals now, but given that kind of power they may one day be pointing the guns at you! Do you want DOJ THAT BIG???"

Let's try and keep a realistic perspective here.

[adiaireton8]

Contrary to your claim, what you said, and what I said are not incompatible. If no harm is done by the government looking at these particular medical records (with names and such deleted), then the greater harm argument allows Ashcroft to do what he is doing, ceteris paribus. I never claimed that a greater harm analysis was a *sufficient* justification for the government's actions in this case, but I am claiming that it is *necessary* for the government's actions to pass the greater harm analysis in order to be justified. In this case, it seems quite clear that the government's actions do pass the greater harm analysis.

[Aeon Flux]

Spunkie-You wrote:

"The plaintiffs brought suit and made certain claims based on the records. Ashcroft has the authority to subpoena all relevant records and docs related to the plaintiffs claims. You understand that right."

You see, that is the grey area, does the AG have the right to subpoena records when there is a federal protection act to keep those records private if no federal crime as been committed?

That is what is the the courts have to decide first.

I, personally like the fact that we all still have a shred of that kind of civil protection (still as weak and lame as it is) to protect the privacy of our records and the privacy of practice in our medical community.

And you never answered the question.

Do you want the DOJ THAT BIG?

[spunkets]

" You see, that is the grey area, does the AG have the right to subpoena records when there is a federal protection act to keep those records private if no federal crime as been committed?

There is no grey area. Everything in this case is crystal clear. The fed protection act and all the other laws relating to privacy do not apply, because there is no privacy issue when the records are not accompanied by ID. The privacy issue is a moot point, because of that.

"That is what is the the courts have to decide first."

The courts are playing games along with the plaintiffs.

" Do you want the DOJ THAT BIG?"

What is big? Does it refer to size? Compitency? Honesty? I expect the DOJ to uphold the US Constitution and to protect Freedom, rights and the fed laws created to do the same.

[Aeon Flux]

Spunkie- You claim:

"There is no grey area. Everything in this case is crystal clear. The fed protection act and all the other laws relating to privacy do not apply, because there is no privacy issue when the records are not accompanied by ID. The privacy issue is a moot point, because of that."

Well Spunkie, I don't think it is actually as cut and dry as all that.

HIPPA has a few more hoops to jump through than that!

From their site:

"We cannot anticipate in regulation all the facts and circumstances surrounding every law enforcement activity today, or in the future as technologies change. Such a rigid approach could not account for the variety of situations faced by covered entities and law enforcement officials, and would become obsolete over time. Thus, we believe it would not be appropriate to specify when de-identified information can or cannot be used to meet legitimate law enforcement needs."

"In the final rule, we allow the covered entity to rely on a representation on the face of the subpoena (or similar document) that the three-part test, including the "could not reasonably be used" criteria, is met. If a covered entity believes that a subpoena is not valid, it may challenge that subpoena in court just as it may challenge today any subpoena that it believes is not lawfully issued. This is true regardless of the specific test that a subpoena must meet, and it is not a function of the "could not reasonably be used" criteria."

Those subpoenas can be completely challenged under the Federal laws, and all involved have a right to do so.
The AG is not above those challenges, and I hope the office never exceeds the powers to be so.

[spunkets]

" From their site:"

From whose site?

" Thus, we believe it would not be appropriate to specify when de-identified information can or cannot be used to meet legitimate law enforcement needs."

Who is we? It doesn't really matter though, because -pay attention now- this is not LE activity, it is a lawsuit challeging the law in question and Congress's right to create it.

" Those subpoenas can be completely challenged under the Federal laws

They can be challenged for all sorts of reasons. Any reason whatsoever in fact. In this case there is no valid justification to uphold any challenge whatsoever, because the suit the plaintiffs brought depends on the records the plaintiffs are holding and are deriving their claims from. Since the judge's are leftists, that make things up as they go along like the plaintiffs, a truthful, logical an just decision may not obtain. That's why it will go to the SCOTUS for a showdown.

"hoops to jump through"

In this case they are no more than puffs of bad breath from plaintiff's lawyers to deal with.

[<1/1,000,000th%]

And at one point there will be a Democrat in office who has an anti-gun grassroot planted way up their bum, and Ashcroft has left a wide open entrance for a massive big gun grab.

I left off my sarcasm tag. Here in the People's Democratic Republic of Illinois, the government's been doing just that long before Bush was elected. Waco also occured before Bush was elected.

The government doesn't need a law to do whatever it wants. There are enough lefty judges to permit anything. The government doesn't need a piece of temporary legislation to break the law when there are 1000's of judges who will go along with anything they want to do.

[Aeon Flux]

Spunkie-

When I posted- "HIPPA has a few more hoops to jump through than that!"

From *their* site:


I thought you would catch on that *their* was "HIPPA".
Here is the information page on the due process of records and ID protections in regards to subpoenas and the standards of how and if IDs are to be blocked out, and the rights of those who wish to challenge those subpoenas

http://www.hhs.gov/ocr/part3.html

I know, all of this is very confusing, but The Government agencies and the Federal protection laws are not easy to avoid or step over and, actually nobody, despite how right they believe they are on an issue, above those laws and standards, yes, even the AG.

[Aeon Flux]

1/1,000,000th%- I don't trust either party.

They both have proven to step all over civil rights and both spend like drunken sailors who want to fatten The Government to an unbearable size.

I give neither my seal of approval until one can prove that they can respect the rights of the public.

[<1/1,000,000th%]

I give neither my seal of approval until one can prove that they can respect the rights of the public.

Don't hold your breath. The power of government is what our founders feared. The tremendous power of the US gov could corrupt anyone.

[Republican Wildcat]

Suit yourself. I was offering you a chance to clear this up, but if you don't want to, that's your prerogative.

[spunkets]

This is just for the thread in case there's doubt. The HIPPA link you gave contains comments and HHS response. They apply to the final rules. This regards who "owns" the records. Now there are several things contained in the records. The data, and the physician's observations, conclusions and notes. The notes are not covered, because they belong to the physician. The data and observations belong to the patient according to the feds- note Congress, who disagree with Princeton and the AMA BTW.

"Comment: One commenter stated that the rule should require rather than permit disclosure pursuant to court orders.

" fed's Response: Under the statutory framework adopted by Congress in HIPAA, a presumption is established that the data contained in an individual's medical record belongs to the individual and must be protected from disclosure to third parties. The only instance in which covered entities holding that information must disclose it is if the individual requests access to the information himself or herself."

The comments and response to the rules you posted have some relevance, but the considerations are different. LE use was mainly for LE and public safety. Overall, HHS's considerations in the cases given for release of ID cleased records are meet here. The fed court Ashcroft is defending the law in also has proper jurisdiction. The subpoena is for ID cleased records that contain relevant evidence regarding what is essentially empty claims of the plaintiffs. There is no criminal fishing expedition and no prosecutions could result from this. The fed rules of evidence and FDA regs for docs apply. The HHS regs don't prohibit the subpoena.

Section 164.512(e)--Disclosures for Judicial and Administrative Proceedings

"Comment: A few commenters suggested that the final rule not permit disclosures without an authorization for judicial and administrative proceedings.

" HHS Response: We disagree. Protected health information is necessary for a variety of reasons in judicial and administrative proceedings. Often it may be critical evidence that may or may not be about a party. Requiring an authorization for all such disclosures would severely impede the review of legal and administrative claims. Thus, we have tried to balance the need for the information with the individual's privacy. We believe the approach described above provides individuals with the opportunity to object to disclosures and provides a mechanism through which their privacy interests are taken into account."

ie. ID cleansing.

[spunkets]

"the rights of those who wish to challenge those subpoenas"

The individuals the records belong to have their privacy retained completely. Their IDs are out, so no one knows who they are. The only ones that can challenge the subpoena are the plaintiffs that claim the records back them up. Ashcroft is challenging their claim and telling them to cough up the records. The court can deny Ashcroft, but that denies truth, justice and the American way.

[Aeon Flux]

Now you claim:

"This is just for the thread in case there's doubt. The HIPPA link you gave contains comments and HHS response. They apply to the final rules. This regards who "owns" the records."


Yes Spunkie, HIPPA falls under HHS. HHS IS the agency HIPPA IS the federal law protecting that guidelines and protects the privacy of medical records.

But, you have to read way down toward the bottom and you will see about the ID clearing and such. And LOOK it looks like you found it!!

Good BOY!!

As you posted:

"The subpoena is for ID cleased records that contain relevant evidence regarding what is essentially empty claims of the plaintiffs. There is no criminal fishing expedition and no prosecutions could result from this. The fed rules of evidence and FDA regs for docs apply. The HHS regs don't prohibit the subpoena."

Now, if you paid attention, there is a three part process those records must go through, should Ashcroft be allowed by the courts to use them.

But, most important point I was trying to make was the right of those who wish to deny the subpoenas as stated within the HIPPA law, and the patients and Dr.s are within those rights, and Ashcroft is NOT above the law to demand these records simply because you find him your big hero.




Yes, I know your little head is in a dizzy, but don't worry, I will try to help you and make it clear.

[Aeon Flux]

Spunkie, this was kind of cute!

"The court can deny Ashcroft, but that denies truth, justice and the American way."

I can almost see you in a salute in that one!

But, actually, the fact that there are federal protection laws and standards on our personal records and information and rights to appeal and deny subpoenas on them, at least at present, to me, IS THE AMERICAN WAY!

Once those rights that protect our privacy, liberty and freedoms are taken away, Spunkie, you will not have much left to salute.

Unless, you believe you can salute to a country that has no regard for such things, but then again that might be more of a "HEIL" than a salute.

Give me the former over the latter, any day, over any issue, even the "over emotional" ones!

[spunkets]

"Dr.s are within those rights, and Ashcroft is NOT above the law to demand these records simply because you find him your big hero.

Ashcroft is not my hero. He is the United States Attorney General and he does have the right to demand those records.

Facts:

• Most folks in this country consider partial birth abortion murder.
• The US Congress passed a law forbidding it and the President signed it.
• Congress heard testimony that the procedure was not a valid medical procedure and believed that over the abortionists claims that it was.
• The law says that it is not a valid medical practice.
• As soon as the law went into effect the abortionists filed suit based on their fraudulent claim that it was a valid medical procedure to save lives.
• In order for the AG to defend the law in court he needs to counter their claim with the data. The data the docs gathered before they stuck the kids. That data is the medical records.
• There is no privacy issue, because the individual's ID has been taken out.
• The docs have zero justification to object, because the claim they're making is based on their records.

"Once those rights that protect our privacy, liberty and freedoms are taken away, Spunkie, you will not have much left to salute."

Rights don't protect privacy, people do. I first came on this thread, because their is no privacy issue in this case whatsoever. The rights issue is in this case is the right to life. Since the govm'ts only justification for existence is to protect rights it has the duty to protect the life of all of it's citizens. In this case kids are being stuck by abortionists for cash, while the abortionists legal team plays footsy with the courts. The AG is doing his job and is going after the records.

"might be more of a "HEIL" than a salute."

The only ones that get salutes from me are the ones that protect Freedom, rights and hold those rights in the proper perspective and order. The right to life comes first, because if you're dead, the others don't matter.

Now since your entry to the thread you have focused on the privacy issue. You have given very strong hints that Ashcroft and the subpoens are somehow an abuse of police power threating both Freedom and privacy. Now, exactly how is that so given the facts above? This isn't a complicated concept, the ID info is deleted. There's no need for any reference to the bureaucratic pile at HIPPA, 3 part tests, the fed rules of evidence, or other diversion. All that remains is the docs data.

For libertarians like myself Freedom and rights are simple concepts and the KISS principle always applies. Keeping that in mind, how exactly is privacy being violated in this case?