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Medical Records: “No reasonable expectation of privacy”

Posted by Rick · February 13th, 2004 · 1 Comment

The United States government says you have no reasonable expectation that your medical records will be private. If they decide they want to review them, the hospitals, doctors, or clinics you’ve visited must turn over all records to the government.

Modernity Trumps Privacy

The reasoning is

In light of “modern medical practice” and the growth of third-party insurers, [the Justice Department] said, “individuals no longer possess a reasonable expectation that their histories will remain completely confidential.”

I’m not sure what “modern medical practice” they’re talking about. Is it the practice of doctors and hospitals keeping medical records? Is it because they sometimes share information with other health care providers in order to achieve a greater health care benefit for their patients? Regarding the growth of third-party insurers, is there a rule in the United States now that says if a company is large enough, the Constitution becomes irrelevant? Even if that’s true, why does the size of medical insurance companies mean that the government is allowed to ignore your privacy rights? Under this bizarre reasoning, shouldn’t it just be the insurance companies that get to ignore your privacy rights?

It’s Not About Abortion

Now I don’t care if you’re against abortion or for abortion. This is a new and different question which should concern all Americans. The way the law works — indeed, the way virtually everything works — is that once a precedent is set, it’s incredibly difficult to avoid its application to other areas. This is especially true when you consider the reasoning proffered by the Justice Department.

Under normal circumstances, the governmental interest in enforcing its laws would be weighed against the privacy rights of the individual. Not only that, but the courts typically consider — at least in the case of laws which direct speech, behavior, or relate to privacy — whether or not the directive has been appropriately tailored to foster the governmental interest without unduly treading upon the interests of the individual(s) at issue. Here we have a subpoena, which might considered “a directive” to turn over the records. And here, the Justice Department offers a different rationale than the standard “balancing act”; modern medical practices and the existence of large third-party insurers, it argues, cancel out any privacy rights.

If, in fact, it is the “modern medical practices” and “the growth of third party insurers” that result in the abrogation of “a reasonable expectation” that our medical histories are private and confidential, then what is to stop the National Enquirer from acquiring and publishing the complete medical histories of, say, Ronald Reagan on the grounds that “modern medical practices” and “the growth of third party insurers” have negated his reasonable expectation of privacy? What is to prevent a small-town newspaper from publishing a story about the sexual peccadillos of a local businessman or politician and supporting the story with excerpts of medical records. After all, “modern medical practices” and “the growth of third party insurers” have shown quite clearly that “individuals no longer possess a reasonable expectation that their histories will remain completely confidential.” Suppose this now-defamed politician or businessman decides to sue his health care provider who, in a fit of prudish indignation, deliberately supplied those medical records to the newspaper? Any competent attorney should be able to defend the health care provider on the grounds that “modern medical practices” and “the growth of third party insurers” make it clear that neither the businessman nor the politician “possess a reasonable expectation that their histories will remain completely confidential.” It’s the patient’s fault for having gone to the doctor!

This is but one slippery slope on which such an argument places us. If “modern medical practices” contribute to the elimination of a reasonable expectation of privacy for medical records, do modern web-tracking practices of companies like RealOne and Microsoft, among thousands of others, eliminate your reasonable expectation of privacy regarding what you read on the Internet and the websites you visit? Could the government use this argument to request information from AOL on anyone who has ever read or visited some site relating to the Middle East in its never-ending search for American citizens who might be sympathetic to al-Queda?

The Bill of Rights

Many people, including United States citizens, do not realize that the Constitution of the United States adopted in 1789, which is considered today the Supreme Law of the United States of America, almost failed to be accepted by the original 13 colonies which later became the United States. There was a concern that the centralized form of government allowed and supported by the Constitution would result in a tyrannical government that would override the rights and privileges of its citizens. One of the delegates to the Constitutional Convention wrote to his son that he “would sooner chop off [his] right hand than put it to the Constitution as it now stands”; that is, without a Bill of Rights to protect the citizens. Therefore, the Constitution received — virtually at birth — its first Ten Amendments, which today are known as The Bill of Rights.

Today, the government wants to force the medical records of women who have sought abortions to be turned over to a Justice Department which has exhibited increasingly hostile attitudes toward the issue of abortion. This is in spite of the fact that there is nothing about abortion, per se, which is illegal. You may very well agree with the Justice Department’s “noble cause.” After all, they’re just trying to catch criminal doctors who might perform outlawed partial birth abortions.

Government Fishing Expeditions

Yet in addition to the potential expansion beyond abortion rights noted above, there is an issue of how crimes are investigated and criminals are caught. And, again, historically, at least, the United States has put much stock in the belief that “the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Those of you in the know will recognize this as the much-maligned Fourth Amendment to the Constitution of the United States, a part of the Bill of Rights.

A detailed examination of the Fourth Amendment is beyond the scope of this blog entry. However, the Founding Fathers of the United States recognized, if our current administration does not, that the government’s unbridled power to engage in the surveillance of its own people, even in the supposed interest of protecting society from criminals, is contrary to the maintenance of a healthy self-governing democratic society.

The U.S. government argues that it needs “hundreds of medical records” — some of which cover perfectly legal abortions — in order to police them for the possibility that some of them might involve violations of the law against partial-birth abortions. Those who might be so convinced that “anything goes” in their battle against abortion should consider that this is just one of several fishing expeditions by the Justice Department. And not all are related to abortion.

On November 15, a conference was hosted at Drake University by the Drake Chapter of the National Lawyers Guild. The National Lawyers Guild is, as one might guess from the name, an association of (American) lawyers. The Guild is made up of Attorney General John Ashcroft’s least-favorite type of lawyer: Defense attorneys. They frequently involve themselves in social activism and the defense of protesters. In a secret, sealed order — does the United States any longer have any other kind? — the Justice Department has subpoenaed Drake University to turn over

all records relating to the Nov. 15 conference. It also demands information about leaders of the National Lawyers Guild, location of the guild’s offices and any annual reports since 2002.

Part of the subpoena asks for “all records of Drake University campus security reflecting any observations made of the November 15, 2003, meeting, including any records of persons in charge or control of the meeting, and any records of attendees of the meeting.”

The Daily Kos reported that a copy of the subpoena, which the Justice Department has reportedly withdrawn under public pressure,

asks for all conference records, including names of people who were there.

The grand jury also wants Drake’s names and records of the National Lawyers Guild’s campus chapter and Drake security records, including any observations of what happened at the forum.

What exactly was the Justice Department fishing for? No one knows. A separate order they obtained forbade Drake University from commenting.

Perhaps they didn’t care what they found. Perhaps they are well aware that

The very fact of general visibility – being seeable more then being seen – will be enough to produce effective social control. (Helms, “Translating Privacy Values with Technology” (2001) 7 B.U. J. SCI. & TECH. L. 288 , at p. 292.)

Or perhaps, like George Bush, they simply believe that “there ought to be limits to freedom.”

Your Medical History; Not A Governmental Tool

In the present situation, Elliot Engel (D-New York) is a voice of sanity which we would do well to heed:

People’s medical records should not be the tools of political operatives. All Americans should have the right to visit their doctor and receive sound medical attention without the fear of Big Brother looking into those records.

Ignore this today because of the politics of abortion and we may find ourselves scrambling tomorrow to defend our right to medical privacy on other issues the government may deem important to its ability to enforce its will — whatever its will may be in that future time.

Special thanks to my wife, Denise Chaffee, for pointing out many of the stories used in this blog entry.

Categories: Social Issues


1 response so far ↓

  • 1 Steve // Feb 13, 2004 at 7:06 pm

    You are so correct in your assessment of the current state of affairs regarding privacy. A recent local suit against County Managed Care and the State alleges that 60 mental health patients were abruptly terminated from their provider of choice for the therapist’s refusal (on principle) to turn over confidential patient records of sessions. This, without benefit of transition services or otherwise, potentially plunging many of these patients into catastrophic relapse.

    These episodes become power contests where our government, in the guise of monitoring patient interests, is willing to completely abrogate those interests to preserve its own power.

    A similar theme that you have touched on in the past is the willingness of government to encroach on essential civil liberties via the Patriot Act. What shall we say about a government so mistrustful of its citizens that it would intrude on domestic dissident organizations absent any indication of criminal activity? If dissent, indeed, is an essential part of the development and continuance of our democracy, at what cost is the chilling effect on our freedoms?

    Today, decisions like O’Bannon v. Town Court Medical Centers have eroded the Constitutional protections sustained by such landmark cases as White v. Davis. The founders knew privacy, even at the price of a little national security, was essential to human dignity.

    It requires perpetual vigilance to sustain that wisdom.


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