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The Power of Privacy to Obscure Equality: Abortion Rights Under Attack (again)
By: Daphne Gilbert

March 29, 2005

Client privacy in medical records came under attack recently in the latest of the wearying and seemingly inexhaustible anti-choice tactics designed to intimidate women exercising their constitutional right to abortion. The Kansas anti-choice Attorney General, Phill Kline, demanded last October that abortion clinics turn over the complete medical records of nearly ninety women and girls. Kline contends that he needs the material for an investigation into underage sex and illegal late-term abortions. The subpoenas, issued as part of a “secret” investigation, surfaced after two clinics fought the order in court. On October 21st of last year a district court judge ruled that Kline could have the files. The clinics have appealed and the details of the case were uncovered this month by the Wichita Eagle newspaper. The appeal is pending.

The clinics are fighting the order as a violation of client privacy, arguing that Kline has demanded unedited medical records for women who sought abortions at least 22 weeks into their pregnancies as well as those for girls fifteen and younger who sought abortions. The initial court decision places a gag order on doctors, prohibiting them from contacting the women to warn them of the investigation. The records sought include the patient’s name, medical history, details of her sex life, birth control practices and psychological profile. Kline’s position is that he needs the records to investigate illegal practices—both the provision of abortions to women in more advanced states of pregnancy and underage sex. The clinics offered to meet his objectives by providing the records with some key information, including names, edited out. Kline refused. Planned Parenthood of Kansas and Mid-Missouri President and CEO Peter Brownlie argues: “…it's simply wrong to expect any doctor to turn over the medical records of dozens of patients based on the hunch — or the hope — of the attorney general that he may find evidence of crimes.”

This is not the first time governments in the United States have attempted to secure access to private medical records on abortion. Last year, Planned Parenthood successfully blocked U.S. Attorney General John Ashcroft's attempt to seize nine hundred confidential medical records from Planned Parenthood affiliates across the country. In Iowa two years ago, Planned Parenthood defeated a similar attempt to allow government invasion of confidential medical records. Just last week, Planned Parenthood sued the state of Indiana to stop the seizure of medical records there, saying investigators were on a “fishing expedition” possibly to identify the partners of sexually active 12- and 13-year-olds. None of the records requested in Indiana involved abortions specifically, but the state did order a review of all medical records in ninety Planned Parenthood clinics, ostensibly in response to a complaint about unreported child sexual abuse.

It seems obvious that the Kansas investigation constitutes, at the least, a violation of client-doctor privacy. However, in a rather bizarre turn of logic, Kline uses the secrecy of the investigation as a comfort to women who fear that the confidentiality of their abortion records has been breached: “Our investigation has been going on for a year and it's been secret until the clinics actually sought to open it up before the Kansas Supreme Court,'' Kline said. “So it's impossible for me to have the motivation of frightening women when I intended this entire investigation to remain secret.” On his webpage, Kline calls the clinics’ allegations “unfounded and superfluous”, and he admonishes, “The constitution does not protect child rapists nor does it allow a violation of late term abortion laws by the clinics.” While he acknowledges the attempted seizure of records, he insists that the women themselves are not subject to any investigation nor any “invasion of privacy”.

Kline has been roundly criticized by newspaper editorials across the United States, as Ashcroft was when he attempted this trick (click here for links to assorted editorials). All of the criticism focuses on the privacy rights, and in particular, the privacy expectations, attached to medical records. While clearly most commentators seem aware that abortion and pregnancy records contain particularly sensitive information, there is a way to read the criticism as founded in an outrage over government access to any private medical record, and not for what Kline’s investigation truly is: an attack on the constitutionally-protected right of women to secure abortions. There is no doubt that what Kline is trying to do violates privacy, despite his rationalizations. There is also no doubt that part of any argument in support of abortion rights must include reference to privacy: a woman’s right to make choices about her body in private consultation with those she trusts; and her right to have an abortion without state judgment or surveillance. However, in my view, consistent attacks to abortion rights over the past twenty years demonstrate that the debate needs to move beyond privacy to a focus on equality rights. A new rubric is necessary to combat the sometimes sophisticated, or often dubious (as in Kansas) ways that abortion rights are undermined.

A constitutional right to abortion exists in both the United States and Canada, though it is grounded in somewhat different language. In the United States, the Supreme Court considered a constitutional right to privacy in Roe v. Wade and found: "This view of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." In Canada, the Supreme Court in R. v. Morgentaler, framed abortion rights under section 7 of the Charter of Rights and Freedoms and held that procedural restrictions on the availability of abortion violated a women’s right to security of the person. Wilson J. in a concurring judgment, tackled the more difficult issue of whether a woman has a constitutional right to abortion and concluded that both the section 7 rights of liberty and security apply to protect women from being the “passive recipient of a decision made by others as to whether her body is to be used to nurture a new life.” Privacy considerations are not an explicit factor in the Canadian approach to abortion rights, but it is possible to read concerns over bodily integrity as implicating a right to personal privacy in how one’s body is treated. Neither American nor Canadian courts treats abortion as a woman’s equality right.

I think that it is precisely because of the way that abortion rights are framed in the United States (and to a certain extent in Canada), that seemingly improbable stunts like the Kansas Attorney General’s are contemplated. Viewing the right to abortion as part of a right to privacy gives credence to Kline’s response that he has legitimate reason to trump privacy with the state’s criminal law power. He argues that he has reason to suspect illegalities and therefore, justification for “limiting” privacy rights in favour of a “protective” law and order agenda. His language is all about reasonable limits to privacy and not about the overriding interest women have in abortion rights. Of course women care that their medical records are kept private. That concern is not really what is at issue for opponents to Kline’s investigation. Women see this as an attack on their right to have an abortion, quite apart and separate from any rights that clients have to record confidentiality. Since abortion rights are exercised only by women, any infringement is an equality issue: limiting abortion rights limits life options for women. Men do not face any comparable limitations. Abortion rights are not gender neutral, a fact which is obscured when the issue is framed as “privacy” (or as “bodily integrity” in Canada). Privacy does not capture the way that women who seek abortions feel about what they are doing.

In this respect, the Morgentaler decision in Canada offers some useful conceptual constructs: exercising abortion rights is about personal autonomy; denying abortion rights is using women as a “means to an end” (as Wilson J. describes). That is certainly the experience of pregnancy, also a condition that is not adequately described by the privacy rubric. Part of the problem with a constitutional right to privacy is that it always exists on a spectrum. The state is always able to argue that there are situations where privacy is justifiably violated, times when privacy is in fact dangerous or harmful, and, as in Kline’s strategy, occasions where the state can claim it is protecting privacy (as in a “secret” investigation) with a hidden agenda that is anything but privacy-enhancing. Equality as a concept and a constitutional right, does not exist on a continuum. We do not speak of people who are more or less deserving of equality rights or more crassly, of individuals who are more or less equal. At least in theory, equality is an ideal to which all individuals are entitled and a reality to which governments (and societies) should aspire.

While it is true that both the American and Canadian constitutional frameworks allow equality rights to be compromised, the justifications offered are quite different then in the privacy context. Privacy rights can be limited when the greater state good demands knowledge and access. Equality rights are limited when the greater state good allows for disparate classifications. In my view, it is much harder to imagine denying abortion rights as an equality right, for on what ground can a state argue that when providing medical services, it is justified in exerting control over women’s bodies and lives that it does not exert over men? Abortion regulations engage state machinery in the most intimate of a woman’s decisions. Regulations determine when, where and how a woman may have an abortion. Abortion regulations are akin to the criminal law power in terms of the influence they exert over an individual’s life. Yet, pregnant women are not criminals. It is only through abortion regulations that the state exercises such power over the lives of its citizens—and these laws only affect women.

Equality rights are fought on the battleground of power. Advantage is weighed against claims of disadvantage, stereotypes are balanced against lived experiences—these are claims for access to the power held by the status quo. Abortion rights are equality claims in part because they too are all about power: a woman’s power to control her body and her destiny, and an Attorney-General’s power to destroy the confidence of an entire gender in a medical system that purports to be gender-neutral. Kline is attempting an underhanded power grab in Kansas, designed to defeat a woman’s access to constitutionally-protected abortion services. It is an attack on women, not just privacy rights and, contrary to Kline’s bluster, it is all about equal rights.

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