E-Mail This Article to a Friend ABORTION RIGHTS Ashcroft wants your medical records BY DAVID S. BERNSTEIN

What a surprise. US Attorney General John Ashcroft is fighting for the Partial-Birth Abortion Ban Act of 2003, which he is blocked from enforcing while abortion-rights advocates challenge its legality. To make his case, Ashcroft apparently feels he needs to violate the privacy of women who have had an intact dilation and extraction (labeled by abortion opponents as "partial birth" abortion). He wants their names and patient records.

So far, he has failed. In US District Court in Chicago last week, Chief Judge Charles Kocoras denied Ashcroft’s efforts to subpoena the records of an obstetrician/gynecologist who performs abortions, including late-term-extraction procedures. "The hospital was asked to produce records," confirms Kelly Sullivan, spokesperson for Northwestern Memorial Hospital in Chicago, where Hammond practices. "Under HIPAA [the Health Insurance Portability and Accountability Act of 1996] and Illinois law, we could not do so. We told the judge that, and he agreed and quashed it."

The doctor, Cassing Hammond, is one of 11 physicians who filed lawsuits last fall seeking to invalidate a ban on those procedures, which became federal law in October 2003. A federal court blocked enforcement of the ban until the issue is decided. An expedited hearing on the cases is scheduled for March 29.

The Justice Department requested the subpoena in December. It sought the medical records of 40 patients who underwent abortions via intact dilation and extraction, according to a report in the weekly newspaper Modern Healthcare. Sullivan could not confirm that information, but verified that the subpoenas were for records of Hammond’s patients.

Modern Healthcare also reported that the Justice Department is seeking similar subpoenas for records of seven other physicians and at least five hospitals; Hammond’s case was the first to be ruled on.

In quashing the subpoena, Kocoras wrote that the records "appear to have been sought for the purpose of testing the assertions in Dr. Hammond’s declarations." This suggests that Ashcroft wants to use medical details about women who have had the procedure to support his defense of the ban this March. The American CiviHl Liberties Union, which is representing Hammond and the other physicians, says that it plans to make arguments similar to those it has used in the past to defeat state-level bans on intact dilation and extraction; one of those arguments is that without an exception for the health of the woman, the law jeopardizes women’s health. Ashcroft may want to use patient records to dispute physicians’ claims about the health risks faced by women who have had the procedure.