Protecting Your Privates

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http://www.alternet.org/members/story.html?StoryID=18214

 

 

Protecting Your Privates

 

By Michael Ventura, Austin Chronicle

March 24, 2004

 

President George W. Bush has been skipping around the country accusing Sen. John

Kerry of " flip-flops. " Well ... I gotchyer flip-flop right here. It's a doozy.

And it threatens not only the privacy but also, in a quite direct way, the

privates of the citizens of these United States.

 

 

 

In 2000, Bush ran on a platform that loudly supported medical privacy. He has

said, " I believe privacy is a fundamental right. " In April 2001, he promised to

protect, he said, " the right of every American to have confidence that his or

her personal medical records would remain private. " Tommy G. Thompson, secretary

of health and human services, chimed in: " We are giving patients peace of mind

in knowing that their medical records are confidential and their privacy is not

vulnerable to intrusion. "

 

 

 

That promise has been broken. On March 6, The New York Times ran a polite

headline on page eight: " Administration Sets Forth a Limited View on Privacy. "

Decide for yourself the extent of the flip-flop – and whether the story didn't

call for starker headlines on page one.

 

 

 

The Bush-Ashcroft Justice Department is attempting to force hospitals and

clinics to turn over medical records on thousands of abortions. More than 2,700

files have been demanded in the San Francisco area alone. Files are also being

sought from Kansas, Missouri, Pennsylvania, and Washington, D.C., as well as the

cities of L.A., Philly, Pittsburgh, New York City and still counting. Ashcroft

claims these records will help him defend a new law prohibiting partial-birth

abortions. Doctors are challenging the law on the ground that it prevents

certain abortions even when they're medically necessary.

 

 

 

Fundamentally, Bush's claim is that the government can instruct doctors on the

needs and treatment of their patients. One function of law is to set precedents.

If the government has the right to dictate one aspect of medicine, and if that

right is unchallenged and/or upheld, then a precedent has been set for

government to dictate other medical priorities. There are honorable arguments

for and against abortion, but it is difficult to imagine an honorable argument

for the government's right to dictate specific medical care. If government can

dictate something so intimate and personal then what, according to that

precedent, can it not dictate?

 

 

 

Flip-flopping drastically on his 2001 promise, Bush's Justice Department now

states that patients " no longer possess a reasonable expectation that their

histories will remain completely confidential, " adding that federal law " does

not recognize a physician-patient privilege. " Do not overlook a point that

should be as alarming to conservatives as to progressives: These sweeping

statements do not single out abortion cases; they cover all medical practice.

The government is claiming the right to pry into any medical records –

psychiatric, for instance, or records of substance-abuse treatment, AIDS, rape,

incest, anything at all. Your privates, in short.

 

 

 

That is a radical reversal of two centuries of American legal practice. It is

also a reversal and denial of what every American expects and assumes when in

need of a doctor's help. When is anyone more vulnerable than when they need a

doctor? The Bush administration is claiming the right to intrude upon that

vulnerability.

 

 

 

This point was not lost on federal District Judge Phyllis J. Hamilton, who

denied the Justice Department access to abortion records from San Francisco area

hospitals and Planned Parenthood clinics. The Times reported her stand that

" forcing the providers to turn over records would undermine the privacy rights

of patients and could dissuade some from seeking treatment. " Judge Hamilton

said, " There is no question that the patient is entitled to privacy and

protection. Women are entitled to not have the government looking at their

records. "

 

 

 

When put that baldly, it's astonishing we're even having the argument. Of course

people are entitled to not have the government snoop on their medical treatment.

Bush doesn't agree, but, this being an election year, he's been forced to

flip-flop back slightly. On March 9, Justice withdrew subpoenas from Planned

Parenthood clinics, stating that " we will not move at this time " but might

" renew our requests if necessary. " For " if necessary " read " if re-elected. " As

of this writing, hospitals are still being harassed.

 

 

 

A Justice Department sop to privacy has been that names would be deleted from

the records. But note: That nicety is not in their basic contention that people

" no longer possess a reasonable expectation " of patient privacy and that federal

law " does not recognize a physician-patient privilege. " Judge Hamilton said the

records the government is demanding contain " potentially identifying information

of an extreme personal and intimate nature, " including the age of first sexual

experience, types of contraception used, details of abuse and of sexually

transmitted diseases. Bush doesn't say why he needs those details, but he claims

the right to know them.

 

 

 

The Times summarizes other critiques of his efforts: " If patients have no

reasonable expectation of privacy ... the government may be more aggressive in

seeking records from hospitals, insurance companies, and other businesses in

criminal, civil, and administrative cases. " That's putting it mildly. The only

possible motivation for claiming such sweeping rights is to assemble dossiers of

intimate material that, if Bush wins this issue, can then be used against

dissenters of all kinds. (Remember that under the USA PATRIOT Act, many forms of

dissent can be classed as " terrorism " at the president's whim.)

 

 

 

As is Bush's usual practice, he sent a small fry to publicly defend these

drastic subpoenas, a spokesman named Trent D. Duffy (where does the far right

get these names?!), who assured us all that this president is " strongly

committed to medical privacy. " The Bush White House does not answer questions.

Instead it issues sweeping statements and is unconcerned that its statements

arrogantly contradict its actions. Trent D. Duffy did not mention that the

government has not informed any of the patients concerned that it wants their

records. Nor did he comment on what else the government is demanding. This is

the Times' summary of the government's demands:

 

 

 

The government also seeks these materials for the last three years:

 

 

 

 

Records of any second-trimester abortion in which the patient suffered a medical

complication, regardless of the technique.

 

 

 

 

Records in any case in which a doctor caused a fetus' death by injecting

chemical agents in the womb in the second or third trimester.

 

 

 

 

Documents related to any medical malpractice claims arising from certain

abortions.

 

 

 

 

The names of all doctors who have performed any type of abortion.

 

 

 

 

The last item is especially chilling. All but " partial-birth " abortions are

legal. So why is Bush demanding the names of all doctors who've performed a

legal procedure? Obvious answer: a list for a witch-hunt. Those doctors can

expect excessive, harassing scrutiny of their taxes, insurance forms, Medicare

and Medicaid forms, etc. A president who breaks his promise to protect " the

right of every American to have confidence that his or her medical records will

remain private " (his own flip-flopping words), is easily capable of such

harassment.

 

 

 

Remember that the Bill of Rights includes articles 9 and 10 of the Constitution:

" 9) The enumeration in the Constitution of certain rights shall not be construed

to deny or disparage others retained by the people. 10) The powers not delegated

to the United States by the Constitution, nor prohibited by it to the States,

are reserved for the States respectively, or to the people. " Strict

constructionists lie when they claim that if a right is not in the Constitution

it doesn't exist. The Bill of Rights insists, twice, that not only the states

but also the people have rights that are not enumerated in the Constitution but

that nevertheless must not be disparaged or denied. To deny that an inalienable

right of privacy is assumed in the Bill of Rights is to deny the Bill of Rights.

 

 

 

If Bush doesn't consider even your medical records private (as he promised he

would), he must assume that your privacy itself is government property.

 

 

 

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