The abortion distortion: what the 'pro-choice' people have done to law, medicine, and language

National Review, July 12, 2004 by Shannen W. Coffin

THE legal battle in three separate federal trials that have followed President Bush's signing of the Partial Birth Abortion Ban Act in November 2003 illustrates how the abortion-rights lobby perverts the law, co-opts the medical profession, and debases the very language we speak. By controlling and distorting the debate in these ways, abortion advocates hope to prevent the American public from learning the stark truth about abortion practices--especially the abhorrent partial-birth method, in which a doctor delivers a living child until its legs and torso are hanging outside the mother and then pierces the child's skull with a sharp instrument and vacuums out its brains.

Even before the act was signed into law, lawyers for Planned Parenthood, the ACLU, the Center for Reproductive Rights, and the National Abortion Federation filed suit in federal courts in New York, Nebraska, and San Francisco, arguing that it was unconstitutional. On June 1, Judge Phyllis Hamilton entered an injunction in the San Francisco case permanently prohibiting the enforcement of the statute against doctors and clinics affiliated with Planned Parenthood. (The separate Nebraska and New York decisions are expected in late summer or early fall.)

To support their arguments in these three cases, pro-abortion groups offered the sworn testimony of doctors from abortion clinics and major hospitals, who asserted that partial-birth abortion was medically necessary to protect the health of women with certain medical conditions or whose unborn children suffered certain developmental "anomalies."

In order to test these doctors' claims, government lawyers served subpoenas on the hospitals where the testifying doctors performed abortions, seeking medical records relating to those abortions. Sensitive to the need to protect the identity of the doctors' patients, however, the government said that the hospitals could delete any identifying information (name, address, age, etc.) about the women involved in the abortions. The hospitals still refused to produce the documents and, employing a variety of absurd legal theories, went to court to prevent their release. Northwestern Memorial Hospital in Chicago, for instance, argued that the records could not be released because they were privileged from disclosure under both state and federal law. This claim was belied by the numerous contexts in which the government regularly receives medical records in federal lawsuits (such as disputes over Medicare billing by a hospital). Nevertheless, a Chicago lower-federal-court judge agreed with the hospital, based in part on a hitherto unrecognized federal "abortion records" privilege.

The government appealed, sensibly arguing that federal judges should not invent new protections peculiar to abortion records and that, in any event, the federal medical-privacy law--known as HIPAA--did permit the release of anonymous medical records in this lawsuit. The United States Court of Appeals agreed with the government that the lower court had both misread federal-privacy law and had wrongly created a federal "abortion" privilege. By sleight-of-hand, the court nevertheless prevented the government from obtaining the records by concluding that a privacy right of an unspecified origin outweighed what the judges considered to be the marginal relevance of the documents.

This decision is extraordinary for several reasons. First, the appeals court concluded that this mysterious "privacy right" protected abortion records but not other medical records. That privacy right--though not recognized by Congress in HIPAA--derived, according to the court, mostly from the sensitive nature of a woman's abortion decision, as if this decision were somehow deserving of greater legal protection than the myriad other difficult medical decisions a human being makes in a lifetime. Second, although numerous other courts had previously concluded that privacy rights were not affected when patients' names and other identifying information were removed from medical records sought in lawsuits, this court reasoned that no amount of ID-scrubbing could stop this alleged invasion of privacy. Finally, the court demanded that the government satisfy a heightened standard of relevance never before seen in the law. Indeed, when questioning a Justice Department lawyer about the government's need for the documents, one federal judge skeptically asked: "And on this the fate of the Republic hinges?"

Nor has the law alone been suborned to the needs of the abortion lobby. The medical academy and the practice of medicine have been drafted as well. In June 2000, when Nebraska's partial-birth-abortion ban was upheld by the Supreme Court, one of the most serious pieces of evidence to show that this abortion method had no medical value was that it was not taught in any medical school. Since then, major medical schools, such as Northwestern, Columbia, and Cornell, have added partial-birth abortion to their clinical teaching. The support by those schools of the most extreme method of abortion doesn't stop there, however. Faculty at the same schools lined up to challenge the federal ban in court, testifying that partial-birth abortion was "fantastic" and "a miracle."