Two Kansas clinics are opposing efforts by the state's attorney general to obtain the medical records of more than 80 women who received late-term abortions in 2003.
The attorney general, Phill Kline, has argued that he is looking for evidence of child rape and violations of a state law restricting abortions performed after 22 weeks of pregnancy. But clinic supporters contend Kline is on a fishing expedition that invades patients' privacy and is making a calculated effort to hamper the clinics from performing abortions.
Kansas Attorney General Phill Kline is seeking access to medical records from 80 patients who received late-term abortions last year.
(Nick Krug -- Associatd Press)
Kline's push for medical records, backed by a judicial subpoena, is the strongest move yet by a state law officer against providers of late-term abortions. Abortion rights activists say Kansas heralds a growing risk to the rights of women seeking to terminate pregnancies without government interference.
"It really is scary for patients," said Priscilla Smith, director of the domestic legal program at the Center for Reproductive Rights in New York. "As more and more restrictions are placed upon abortion, there's more and more opportunity for self-righteous and right-wing antiabortion attorneys general and prosecutors to do these kinds of investigations."
For his part, Kline -- who has said he would like to see Roe v. Wade overturned -- contends that "the issue is whether abortion clinics are above the law."
South Carolina permits state authorities to photocopy patient records, whereas Arizona requires medical providers to surrender ultrasound scans to "outside contractors for review," said Ted Miller, a spokesman for NARAL Pro-Choice America, an abortion rights advocacy group. In all, more than half the states restrict late-term abortions.
A Kansas legislator last week proposed a bill requiring anyone who performs an abortion on a girl younger than 16, the state's age of consent, to preserve fetal tissue. The goal of the measure, which has more than two dozen co-sponsors, is to help establish paternity in cases defined as child rape.
Last year, former U.S. Attorney General John D. Ashcroft sought abortion records from hospitals and Planned Parenthood clinics in several states as part of the government's defense of the Partial Birth Abortion Ban Act, which Congress passed in 2003. The Justice Department asked for hundreds of files, with names blacked out, saying it was necessary to learn whether late-term abortions were medically necessary.
U.S. District Judge Charles P. Kocoras, deciding a challenge by Chicago's Northwestern Memorial Hospital, was among several judges who ruled against Ashcroft. His opinion was upheld on appeal. He called abortion "one of the most controversial decisions in modern life."
"An emotionally charged decision will be rendered more so," Kocoras wrote, "if the confidential medical records are released to the public . . . for use in public litigation in which the patient is not even a party."
In 2003, doctors in Kansas performed 318 abortions, 11 of them on Kansas residents who carried fetuses considered likely to be viable outside the womb. In 172 late-term abortions that year, the fetus was not considered viable, according to the state health department.
Kline pointed out that his Kansas investigation is backed by a judicial finding of probable cause that a crime has been committed and that the medical records contain relevant evidence.
But clinic attorneys argued in a brief to the Kansas Supreme Court that "the logical and natural progression of this action could well be a knock on the door of a woman who exercised her constitutional right to privacy, by special agents of the attorney general who seek to inquire into her personal, medical, sexual or legal history."
Kline and his allies believe the clinics and the critics are overreacting. Any records produced by the clinics -- Women's Health Care Services in Topeka and a Planned Parenthood facility in Overland Park -- would be provided to Shawnee County Chief Judge Richard D. Anderson, who has said he would consider masking some patient information.