Kline wants files in 90 abortions
He says records needed for investigation
By DAVID KLEPPER and LAURA BAUER
The Kansas City Star
TOPEKA — Kansas Attorney General Phill Kline is demanding that two abortion clinics turn over the names, sexual histories and medical records of 90 women who received late-term abortions.
The clinics accuse Kline of mounting a “secret inquisition” that violates privacy laws and patient-doctor privilege, and they have asked the state Supreme Court to intervene.
This is not the first time prosecutors have tried to gain access to abortion records. Then-Attorney General John Ashcroft tried to get abortion records last year to see whether federal law was being followed. Medical records are protected in most instances, but the law allows prosecutors to subpoena them for criminal investigations.
Kline said he needed the information for an investigation into possible sexual abuse of children and to ensure that abortion clinics were following state laws.
Privacy experts called the move distressing.
“This is not a slippery slope we're going down,” said Pam Dixon of World Privacy Forum, a San Diego nonprofit group that studies privacy issues. “It's the opening of a Pandora's box.”
The legal back-and-forth began last fall but only became public this week when the clinics filed a brief asking the Supreme Court to intervene. That is because a gag order was imposed on both sides, and all legal documents were sealed.
Kline, who opposes abortion, was tightlipped about his motives Thursday. At a brief news conference he told reporters that the subpoenas sent to the clinics were meant to uncover evidence to be used in investigations of crimes that could include child rape.
He pointed out that the law requires health-care providers to report suspected child abuse and that sexual intercourse with a person 14 or younger is considered rape in Kansas. According to state reports, 78 girls age 14 or younger received abortions in Kansas in 2003.
“When a 10-, 11-, or 12-year-old is pregnant, under Kansas law that child has been raped,” he said. “I have the duty to investigate and prosecute child rape and other crimes in order to protect Kansas children.”
He would not say whether his investigation was prompted by a report of a particular incident.
Two years ago Kline had called for all health-care providers in the state to report underage sexual activity. A U.S. district judge blocked that move.
In the brief filed this week, the clinics point out that Kline's requests single out women who received late-term abortions, and not specifically young girls who may have been raped. The women all received abortions during or after their 22nd week of pregnancy, which is allowed in Kansas only if the fetus is not viable or if the pregnancy presents a significant health risk to the pregnant woman.
The clinics say the records Kline wants would include names and “the most intensely private information a woman can disclose,” including sexual history, birth-control practices, medical history, notes of physical exams and psychological profiles.
Kline's actions, the brief said, could lead to “a knock on the door of a woman who exercised her constitutional right to privacy, by special agents of the Attorney General who seek to inquire into her personal medical, sexual, or legal history.”
The two clinics are referred to only as “alpha” and “beta” in the brief. The clinics' attorneys write that they believe Kline is looking for instances when clinics failed to report suspicions of sexual abuse, or instances when clinics provided late-term abortions to women who didn't meet health requirements.
The clinics received subpoenas for the records last fall, according to the brief. Their attorneys objected and asked Shawnee County District Court Judge Richard Anderson why the information was needed.
Anderson ordered the clinics to provide the information, saying Kline did not have to explain his motives. Kansas law gives prosecutors the right to conduct secret inquisitions during investigations.
The clinics offered to present records with identifying information redacted. They argued that if Kline found evidence of a crime in a report, he could seek more information about that woman without exposing the identities of the others. According to the brief, Anderson has not yet ruled on that motion.
This week attorneys for the clinics formally asked the Supreme Court to intervene. Kline has until March 14 to respond, although he said he expected to complete the response next week. A hearing before the court has not been set.
Since April 2003, release of health information has been tightly restricted by the Health Insurance Portability and Accountability Act, known as HIPAA. The act allows the release of information to law enforcement in several circumstances. A subpoena is one of those circumstances.
Kansas already collects abortion data for annual reports. The data include patient birth dates, patient identification numbers, race, home county and other potentially identifying information. The individual reports are treated as confidential, said Sharon Watson, a spokeswoman for the Kansas Department of Health and Environment.
According to the brief, Kline used the patient identification numbers submitted to the health department in the subpoenas.
Kansas clinics are not the only ones to fight subpoenas requesting medical information.
Last year the U.S. Department of Justice subpoenaed abortion records from several hospitals and Planned Parenthood offices across the country. Ashcroft requested the hundreds of records, with names blacked out, to obtain information about late-term abortions.
Some hospitals handed over the information. Some fought the subpoena in court. In February 2004, a federal judge in Chicago denied the government's request to obtain abortion records from more than 40 patients of Chicago's Northwestern Memorial Hospital.
U.S. District Judge Charles P. Kocoras cited HIPAA regulations and Illinois' medical-privacy law in his ruling.
“American history discloses that the abortion decision is one of the most controversial decisions in modern life,” Kocoras wrote. “An emotionally charged decision will be rendered more so if the confidential medical records are released to the public … for use in public litigation in which the patient is not even a party.
“Patients would rightly view such disclosure as a significant intrusion on their privacy.”
A month later, a federal appeals court upheld the decision.
Kansas abortion foes lauded Kline on Thursday, saying clinics hide proof of sexual assaults behind doctor-patient privilege.
“We think they've been hiding child rape and incest for a long time,” said Mary Kay Culp of Kansans for Life. “They get rid of the evidence.”
Wichita physician and abortion clinic operator George Tiller, a frequent target of anti-abortion groups, released a written statement Thursday saying his clinic reports every instance of suspected child abuse. Tiller's attorney would not say whether Tiller's clinic was one of the two singled out by Kline.
Early Thursday afternoon, before Kline's news conference, Peter Brownlie of Planned Parenthood of Kansas and Mid-Missouri said a gag order prohibited him from talking about the issue. The gag order would only cover those directly involved in the lawsuit. Brownlie would not elaborate.
After Kline's news conference, Brownlie's office released a statement, saying the attorney general “sought, falsely, to portray abortion providers as somehow impeding legitimate investigation of statutory rape.”
In the release, Brownlie said that Planned Parenthood and its affiliated clinic, Comprehensive Health, “resolutely oppose” any attempt to gain private medical records of any patient.
Senate Minority Leader Anthony Hensley, a Topeka Democrat who has recently accused Kline of evading open meetings rules, said it is “completely inappropriate” to demand access to medical records.
“I'm not sure what his motives are,” he said.
Republican senators held a news conference Thursday to support Kline and said abortion records should be used to find evidence of sexual abuse of minors.
“When there's probable cause to believe a crime has been committed, the state's interest in prosecuting (sexual abuse) … outweighs the privacy interest,” said Sen. Phil Journey, a Haysville Republican.
Tiller has provided information to Texas authorities about a 19-year-old developmentally disabled woman who received services at his clinic and later died. Kline is not investigating her death.
Texas authorities would not say what alleged crimes they were investigating, but Journey said he assumed they believed the woman was raped. Kline's request is broader than the investigation in Texas.
Dixon, of World Privacy Forum, said it was wrong to sort through medical data looking for possible crimes.
“The bottom line is it's an inappropriate fishing expedition,” she said in a telephone interview from the Forum's San Diego office. “Among our most private information we have is medical information,” she said. “Anyone who has sensitive medical procedures down or has a disease and they don't want that information given out, they need to understand this applies to them, too.”