Friday, February 25, 2005

Your Medical History--Private or Public Information?

Thank you to Dr. Charles and Ms. X (here, and here) for alerting me to the latest attempted abuse of power by our beloved leaders.

I only had time to listen to the NPR report, and to read a couple of articles. My hurried summary:

  • Kansas State Attorney General (AG) Phill Kline is seeking to obtain access to the medical records of 90 women who underwent an abortion in 2003 at 2 clinics.

    The Kansas attorney general, a staunch opponent of abortion, has demanded the medical records of nearly 90 woman and girls who had late-term abortions, saying he needs the material to investigate crimes.


    On Oct. 21, state District Judge Richard Anderson ruled that Kline could have the files. The clinics then filed an appeal with the high court. No hearing has been scheduled.

  • The AG says it's not about abortion, but about sex crimes against minors.

    But Attorney General Phill Kline insisted Thursday he needs the records because he has "the duty to investigate and prosecute child rape and other crimes in order to protect Kansas children."

    Sex involving someone under 16 is illegal in Kansas, and it is illegal in the state for doctors to perform an abortion after 22 weeks unless there is reason to believe it is needed to protect the mother's health.

  • Investigation was begun last year, in October 2003; conducted in secret; all court records sealed; subpoenas and 30 motions all sealed.

  • Kansas law allows secret inquisitions as part of a criminal investigation.

  • Case become public because attorneys for the two abortion clinics asked State Supreme Court to get involved.

    The clinics said Kline demanded their complete, unedited medical records for women and girls who sought abortions at least 22 weeks into their pregnancies in 2003. Court papers did not identify the clinics.

    The records sought include the patient's name, medical history, details of her sex life, birth control practices and psychological profile.

    The clinics are offering to provide records with some key information, including names, edited out.


    In their brief, the clinics' attorneys said a gag order prevents the clinics from even disclosing to patients that their records are being sought.

  • Under Kansas law MDs are required to report suspected cases of sexual abuse. The AG has interpreted this law to apply to any [?female] sexual activity (in the under 16 age group). [This is from the NPR report and it's not too clear.]

  • AG's interpretation was challenged by health care agencies.

  • Federal Judge issued a restraining order blocking AG's interpretation.

    Kline in 2003 began pushing to require health care professionals to report underage sexual activity. Kline contends state law requires such reporting, but a federal judge blocked him. The case has yet to be resolved.

  • All records requested by the AG are for abortions performed at an estimated gestational age (EGA) 22 weeks or older.

  • AG cited a law requiring MDs to determine gestational age, and if EGA is 22 wks or older, if it can survive outside womb. [Also from the NPR report; not too clear.]

    I'll try to look up some of these Kansas laws, but, even before I do that, I can already tell you two things:

    1) This is not a secret inquisition [why are the citizens of Kansas allowing secret inquisitions?] motivated by the duty to investigate and prosecute child rape and other crimes in order to protect Kansas children.

    If you don't have any actual allegations, and you are going on a prosecutorial fishing expedition*, what you need to know is how many teenagers under the age of 14 are pregnant. [I know several articles list 16 as the age of consent in Kansas, but the AG says it's 14, so that's the number I'm using.]

    The gestational age is irrelevant. Unless, of course, under Kansas law only certain Kansas children deserve protection--those who have an abortion at an EGA 22 weeks and over--while all the rest [those who have an abortion at an EGA under 22 weeks, and/or those who give birth] may be raped at will?

    *My understanding of the lawspeak in the AG's statement: Sexual intercourse with a child 14 years of age and younger is a crime in Kansas. The crime is child rape. A pregnant 14 yo and younger represents probable cause that child rape has occurred.

    OK, I couldn't resist. I had to look up some numbers (.pdf). [Sorry, I didn't have time to organize the material.]

    In 2003 there were 40 live-births (.pdf) in the 10-14 age group. The father's ages were: 1 (10-14 age group); 14 (15-19 age group); 3 (20-24 age group); and 22 age group not specified.

    Of course what we really need to know is the number of pregnancies (not just live-births) in the 10-14 age group. The best data I could find [Table 19 (.pdf)]:

    In 2003 there were 73 pregnancies in the 10-14 age group (live-births + reported abortions + stillbirths). So, the number of reported [not sure if this means spontaneous and elective, or only elective] abortions and stillbirths for the 10-14 age group is 33**.

    Interestingly, the number of teenage pregnancies [10-19 age group] in Kansas has been steadily decreasing from 1995 (6,552) to 2003 (5,174).

    **From this data (.pdf) it looks like, in the under 15 age group, there were 33 reported abortions for Kansas residents, and 45 for non-residents.

    But the most interesting [as in extra disturbing] bit of information I found is this. In 2003 there were 78 reported abortions--33 for residents, 45 for non-residents--in the under 15 age group. In only 14 of these cases was the EGA 22 and over. [No residency breakdown available.]

    So, for the under 15 age group the majority of abortions, or ~82%, occurred at EGAs of under 9 weeks to 21 weeks.

    The Kansas AG states that rape is a serious crime and when a 10, 11 or 12 year old is pregnant - they have been raped under Kansas law and [a]s the State's Chief Law Enforcement Official I have the duty to investigate and prosecute child rape and other crimes in order to protect Kansas children. Hence, the reason for his demand to, secretly, have unrestricted access to patients' medical records. Yet his request only covers the records of patients who had an abortion at 22 weeks and over, a minority at ~18%. Moreover, those in the 10-14 age group who gave birth (um, you know, as a result of a pregnancy) aren't even mentioned in the AG's request.

    Bottom line: If this is about child rape and other crimes, and it's done to protect Kansas children a) why are the majority of pregnant 10-14 yo excluded (the majority of patients under the age of 15 who have had an abortion, and all the 10-14 yo who gave birth?; and b) why are non-residents and/or patients over the age of 14 included? [I am making an assumption here, based on the number of records (90) requested. From the data, for all age groups, in 2003 there were only 46 Kansas residents who had an abortion with an EGA 22 and over.]

    2) With the exception of the Kansas AG and a couple of legislators, for everybody else--resident/non-resident of Kansas, female/male, young/middle-aged/old--this is not about abortion. It's about the government demanding secret and unrestricted access to your medical history, details of your sex life, birth control practices, and psychological profile. (Anything in your chart you wouldn't care your state's politicians or AG to have access to, and to share, without your knowledge, with perfect strangers, your employer, your acquaintances, and/or members of your family?)



    At 2:38 AM, Anonymous Anonymous said...

    This comment has been removed by a blog administrator.

    At 2:39 AM, Anonymous Anonymous said...

    wow - not bad investigating on the drop of a hat. The whole thing stinks to me, and your final conclusion seems valid. It is sad that as I write notes in patient charts, I am increasingly aware that these are becoming PUBLIC documents in so many ways... likely to be used by insurance companies, third party payors, lawyers, prosecutors, and now this. not to mention the women's privacy issues

    At 2:58 AM, Anonymous Anonymous said...

    Hmmm... not since HHS published its HIPAA regs have medical records been private. HIPAA absolved doctors of any liability for breeches of confidentiality. I suppose that "bought them off" so that they never protested too loudly when the regs were promulgated.

    I never give medical histories when I go to the doctor any longer. Why should I give such private information to a doctor, who is essentially an agent of the state.


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