Clinics' Bid to Withhold Abortion Files Is Criticized
By JODI WILGOREN, NYTimes on the Web, March 4, 2005
The Kansas attorney general said yesterday that two clinics were trying to quash his subpoenas for the medical files of 90 women and girls who had late-term abortions to protect themselves from criminal prosecution, not their patients' privacy.
He likened the clinics' demand that he detail the nature of his investigation before they turn over the records to a bank robber's preventing a police officer from looking into a sack unless he is told why.
"The issue in this case is whether abortion clinics are above the law," the attorney general, Phill Kline, a Republican and staunch opponent of abortion, said at a news conference in Topeka.
"We're talking about the target of an investigation saying I have a right to review the evidence and decide whether to give it to you.
That's not how the law operates. If it did, nobody would ever be prosecuted."
Having said last week, when his request for the records first became public, that his focus was child rape, Mr. Kline acknowledged for the first time on yesterday that the investigation is also aimed at "criminal late-term abortion," in which doctors could be held liable.
Kansas state law restricts abortions after 22 weeks of pregnancy, requiring doctors to first determine whether the fetus could be viable outside the womb, and, if so, to perform an abortion only if the mother's health requires it.
One of the two clinics, Women's Health Services of Wichita, has become a national magnet for late-term abortions, with its medical director, Dr. George Tiller, performing hundreds each year.
Dr. Tiller has battled Mr. Kline for years, funneling at least $150,000, through a political action committee, to his opponent in the 2002 election.
Mr. Kline questioned the clinics' protestations, in legal briefs, about patient privacy, noting that Dr. Tiller's clinic routinely provided patients' names, addresses and dates of abortions to fund-raisers unless patients ask that they be withheld.
"I find that position outrageous," he said at the news conference.
The comments came as Mr. Kline filed a 51-page response in State Supreme Court to the clinics' request last week that the justices block a lower court from obtaining the records.
In their papers, the clinics denounced the inquiry as a "fishing expedition."
Mr. Kline's response is largely focused on technical legal questions of jurisdiction, arguing that if the court quashes the subpoenas, it may "find itself having to referee" every investigation where a prosecutor seeks medical records.
Lee Thompson, the clinics' lawyer, declared in a statement yesterday that "our clients have followed the law, and will continue to do so," but did not address the substance of Mr. Kline's argument.
"They have fulfilled their duties to protect the privacy of their patients," the statement said, "to report cases of criminal abuse to authorities in the locations having jurisdiction, and, as well, to respect the orders of the Kansas courts (including in this case) concerning public disclosure of information relating to subpoenas for medical records."
The main point of dispute is the scope of Mr. Kline's request. In previously sealed testimony included in Mr. Kline's brief, the clinics' lawyer is quoted acknowledging that if there was evidence of a crime in one file, the clinics would have to turn it over.
But the clinics have argued that by requesting 90 files Mr. Kline seems to be canvassing for a crime, and that the full records, including details about patients' marital, employment, sexual and drug use history, are unnecessary in any case.
Another area of contention concerns the redacting of certain information. The clinics have asked that if the subpoenas are not quashed, they be allowed to blot out identifying or irrelevant information.
Mr. Kline said yesterday that "the clinics have never offered redacted files" and that he expected the court that issued the subpoenas, through a special counsel and physician enlisted to review the records, to redact personal details before handing the records to him.
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