Abortion Laws: Pro Life or Pro Choice(v2)?

In a stunning move today, the Justice Deparment has subpenoaed hundreds of hospital records from patients in new york, philly, and Baltimore (I think) in an effort to prove that "partial-birth" abortions are never medically necessary. They are seeking records specifically on abortions performed, and Ashcroft has pursued this with a zeal. Two federal judges have issued very different rulings in relation to this demand. The Manhattan judge who issued the initial ruling granting an injunction against the new law has demanded the records be released, or else he will lift the injunction. A higher-ranking federal judge in chicago has defeated the Justice Department's request, claiming that such a fundamental violation of privacy-without demonstratable probable cause-is an intolerable violation of the constitution.


My opinion? I hope this action finally exposes the anti-abortion fanaticism of the Bush administration and their agenda. If the DOJ is allowed to look into private medical records just to prove a point, then we truly have lost any semblance of a free society. I hope that day has not arrived.

I would love to see public reaction to this. I can't imagine that most americans would like to be able to have their medical records opened simply to look for data without their consent.

Unbelievable.

Peace,

V-03

 

That's just wrong.




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My reaction depends on exactly how the records will be used and what information is being taken from them.

Let me provide a comparison from technology.

TiVOs are essentially VCRs that use hard drives to store TV shows. With the product, you can get the equivalent of VCR+ programming options. In exchange for that (and a modest monthly fee), TiVO gets a record of everything you do with your unit (what buttons you press, what shows you watch, etc.). This is how they knew that the Superbowl Halftime Show was so popular (at least one brief scene was).

Invasion of privacy you might say? Perhaps.

However, they collect no personally-identifying information. At best, they can associate it with your zip code. In that context, it is actually a good service that is offered, and a lot of needed data is collected.

If similar safeguards were in place (so that the records could not be linked to the individuals, but the needed data was still available), I would have no problem with it. If it lacks such safeguards, then I would be opposed to it on privacy grounds.

Kimball Kinnison

 

Right. Does it violate privacy if the hospitals just report, "X number of patients had this procedure"?

 

They can ask for data if they want data, but that's not what they're asking for.

They want to examine the records themselves; the motives behind this are to bolster the bill's (IMHO) erroneous claim that such procedures are "never medically necessary". In other words, they want to interfere with physicians' judgement by challenging the grounds on which these procedures were performed. On the surface, they are doing it en masse, but what is to stop them from going after individual doctors on the claim that they carried out a procedure that was never medically necessary? They cannot be retroactively prosecuted criminally of course, but I do not believe that ex post facto applies to medical-license hearings or civil suits. The government could try and file a class-action wrongful-death suit against such abortion providers, as ridiculous as they may seem.

Time for rounds.

More later.

Peace,

V-03

 

People need to be given the choice, don't they On the Teacher and TA evaluation forms, we have an optional section asking for race, gender, and other such identities. It doesn't really make sense that the university would specifically say the questions are optional and will be used only for quasi-census purposes...especially because the evaluations are anonymous, and the most people can do is track the forms down to someone among twenty to two hundred students.

-Aunecah

 

They want to examine the records themselves; the motives behind this are to bolster the bill's (IMHO) erroneous claim that such procedures are "never medically necessary". In other words, they want to interfere with physicians' judgement by challenging the grounds on which these procedures were performed. On the surface, they are doing it en masse, but what is to stop them from going after individual doctors on the claim that they carried out a procedure that was never medically necessary? They cannot be retroactively prosecuted criminally of course, but I do not believe that ex post facto applies to medical-license hearings or civil suits. The government could try and file a class-action wrongful-death suit against such abortion providers, as ridiculous as they may seem.

Again, if there is no personally-identifying information included with it, why would it be a problem?

There would be no need to provide such things as the patient's identity, nor the doctor's identity. There would be little-to-no reason to include many past conditions. In fact, there would be little-to-no reason to provide the information on anything other than a state-by-state level (i.e. only stating what state the patient was from).

Kimball Kinnison

 

Kimball, my point is that my university puts a special notice saying those questions are completely optional and need not be answered - even though the forms are completely anonymous. Some of the classes that I'm in have around two hundred students.

What I'm asking is if there is any specific law that is forcing the university people to put the "completely optional; don't need to answer if you don't want to" part in the evaluation forms.

-Aunecah

 

Ah, Kimball, but how do you know whether or not names will be given, or if the records themselves will be kept anonymous.

Simply put, I don't trust John Ashcroft or his DOJ. An accidental "leak" of the information doesn't seem that far out of line, IMHO.

Peace,

V-03

 

Ah, Kimball, but how do you know whether or not names will be given, or if the records themselves will be kept anonymous.

That is left to the courts to set up the guidelines whereby it is acceptable.

That's the thing. The "right to privacy" is not absolute. They can set up guidelines so that the government's compelling interest in this matter (determining whether the ban as a factual base or not) while maintaining the general privacy of the patients.

For example, the court could require that the records be passed to a separate organization to strip identifying information from them, or require that the individual doctors/hospitals do that before turning them in to a central clearinghouse for the data. From there it can be passed to the DOJ once it is sanitized.

As I said, as long as proper precautions are taken, there is no barrier to the data being used. It is up to the courts to decide what those proper precautions are.

Kimball Kinnison

 

(determining whether the ban as a factual base or not)

You mean they didn't do that work before they passed the ban? Figures





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You mean they didn't do that work before they passed the ban? Figures

They had quite a bit of testimony included with the bill that was passed, including a rather large section of findings.

Now, there are many people trying to claim that the findings were in error. For example, there is the judge who ruled that the ban had to be put on hold until such things could be shown in court. As part of the evidence for proving their side (and supporting the testimony included with the bill), the DOJ has asked for this material.

So yes, they did do that work before they passed the ban, but now they have to provide more information to justify it in court.

Kimball Kinnison

 

That is left to the courts to set up the guidelines whereby it is acceptable.

That's the thing. The "right to privacy" is not absolute. They can set up guidelines so that the government's compelling interest in this matter (determining whether the ban as a factual base or not) while maintaining the general privacy of the patients.

No-one's arguing that the right to privacy is "absolute". But the constitution requires due process; grabbing these records "after the fact" as justification for a disputed claim made before the congress in regards to passing a controversial bill is unacceptable, IMHO. The government should be more "mature", it should "know better".

It's more saber rattling by Ashcroft.

They had quite a bit of testimony included with the bill that was passed, including a rather large section of findings.

Now, there are many people trying to claim that the findings were in error. For example, there is the judge who ruled that the ban had to be put on hold until such things could be shown in court. As part of the evidence for proving their side (and supporting the testimony included with the bill), the DOJ has asked for this material.

So yes, they did do that work before they passed the ban, but now they have to provide more information to justify it in court.

The problem is the "proof" was disputed by the standards-setting organization responsible for the administration of the practice of obstetrics/gynecology in the US. The "testimony" they garnered was from a few physicians; it does not substitute or override the recommendation of the primary organization which represents this particular field of the medical profession. Honestly, I could find doctors to testify before congress who wish to ban aspirin because of the risk of GI bleeds, but such testimony would never win the endorsement of physicians-at-large, and neither did to so-called "evidence" that was offered up to the senate. The fact that the congress chose to ignore this in favor of doing something politically expedient does not in any way make it right, or diminish my second point:

There is no proof of the claims made, so the testimony of those physicians are moot, as far as I am concerned. Frankly, the doctors who offered their opinions before the congress that this procedure is never medically necessary should be censured by their respective medical boards, IMHO. They have willfully violated the standards of evidence-based medicine by substituting their way of doing things for the "process" of learning through carefully-controlled studies. I would be perfectly willing to accept such a ban if proof that it were never medically necessary were obtained through proper studies. But emotional testimony cannot substitute for this, it would lead to chaos amongst physicians. We have a way of doing things in the practice of medicine, and this should not have been violated so that lawmakers could make a point.

Show me the evidence, and I will support a ban. But don't:

a) steal patients' private records to justify what you know to be a shaky claim

and

b) do it after the fact.

Mr. Ashcroft has very little regards for the ideals of the constitution that he is supposed to be enforcing, IMHO.

My $0.02, for now.


I look forward to more good debate on this subject with you, Kimball .

Peace,

V-03

 

No-one's arguing that the right to privacy is "absolute". But the constitution requires due process; grabbing these records "after the fact" as justification for a disputed claim made before the congress in regards to passing a controversial bill is unacceptable, IMHO. The government should be more "mature", it should "know better".

Basically, it can be summed up like this:

1) Congress felt that the committee hearings provided enough data to support the ban, therefore they passed it.

2) Certain groups disagree with Congress' assessment and filed a suit.

3) The DOJ has the responsibility to defend the position of the law as it was passed. To do so in court, it needs further evidence to show that the evidence used by Congres was in fact accurate.

Basically, you can't say that Congress' evidence was bad and then refuse them the material to defend it. There's no conspiracy here, nor is it a lack of maturity. It is simply the way the process works.

Kimball Kinnison

 

Basically, it can be summed up like this:

1) Congress felt that the committee hearings provided enough data to support the ban, therefore they passed it.

I disagree. The "data" provided was "no, this procedure is never medically necessary in my professional medical judgement" by a small handful of physicians who have no evidence-based right on which to make their claims.

2) Certain groups disagree with Congress' assessment and filed a suit.

Most importantly, the major professional organization that represents ob/gyn's and their practicing/training standards came out against this ban and the so-called "evidence", claiming that more studies were needed. As I have stated time and again, the practice of medicine is based on studies, and congressional action to circumvent this should not have been taken in the absence of either a consensus within the medical community and/or overwhelming evidence of the bills' claims. That's my problem with this bill-not just the content, but the process by which the bill was undertaken and passed.

3) The DOJ has the responsibility to defend the position of the law as it was passed. To do so in court, it needs further evidence to show that the evidence used by Congres was in fact accurate.

Addressed above. If, in regards to medical evidence, the bill did not have enough supportive material to bolster its' claims, it should have been tabled. When undertaking a clinical study, physicians generally police themselves in terms of patient safety. If a drug is harmful, the study is stopped before completion. This type of self-policing does not need political interference. If the government truly wants to end the debate on this, then the answer is simple: fund a study. That's all they have to do. Do a retrospective study of these procedures, the context in which they were performed, and whether or not there are alternatives available that would not have endangered the life or the health of the mother. Then make the "never medically necessary" claim-but not before.

Basically, you can't say that Congress' evidence was bad and then refuse them the material to defend it. There's no conspiracy here, nor is it a lack of maturity. It is simply the way the process works.

No, I'm saying that the lack of evidence, as well as the way it was gathered, was bad. More evidence is needed, and there is a proper framework within the medical community for gathering that evidence. Let the doctors do their jobs, and perhaps we could have avoided this whole mess.

Show me the proof. Don't do it "later", and don't make claims you can't substantiate. This is not how american medicine, arguably the best in the world, has been or should be practiced.

Peace,

V-03

 

We've been over most of your points in another thread. In response to them, I will simply state that the basis for the ban followed established democratic procedures. It went by-the-book. If you have a problem with that, then get the procedures changed. Don't complain about them here.

No, I'm saying that the lack of evidence, as well as the way it was gathered, was bad. More evidence is needed, and there is a proper framework within the medical community for gathering that evidence. Let the doctors do their jobs, and perhaps we could have avoided this whole mess.

Congress has the authority to pass such laws, whether you like it or not. They followed the procedures outlined for it, including the ones for gathering data.

You are looking at this from a strictly medical perspective. Try looking at it as part of the bigger picture.

The government has the authority to legislate in matters where it has a compelling interest. This can include matters of "morality", where there is a large consensus among the legislators and the People on the matter (such as in cases of theft, murder, etc.). The partial-birth abortion ban was one of those strongly supported matters.

Now, some of its opponents are claiming that the information was in error, but also want to deny the court the ability to review evidence that would support the ban. That's not the way it is supposed to work. The courts are there to decide if the ban was properly justified. In order to do that, it needs to review all of the evidence. It is no longer simply a medical issue, but a legal one as well. You cannot reasonably limit it to the medical issues involved.

Kimball Kinnison

 

I'll get to your post later-today or tomorrow, Kimball. I agree with some of your points and disagree with others. We are both right here and both wrong.

It is not as clear-cut as you make it out to be.

Peace,

V-03

 

I'm Anti-Death, or Pro-Life.

 

Bumping up the Abortion thread for this critical anouncement:

Jane Roe of Roe V Wade wants descision overturned !!!!!

http://sfgate.com/cgi-bin/article.cgi?f=/news/a/2004/02/19/national1715EST0723.DTL

A federal appeals court has agreed to hear a request from the woman formerly known as "Jane Roe" to reconsider the 1973 U.S. Supreme Court decision Roe v. Wade that legalized abortion.

Norma McCorvey, who joined with anti-abortion activists nearly 10 years ago, is seeking to have the decision overturned, citing what she says is more than 30 years of evidence that abortions are psychologically harmful to women.

A federal district judge threw out her initial request in June, saying it was not made within a reasonable time. But the New Orleans-based 5th U.S. Circuit Court of Appeals has agreed to hear McCorvey's arguments March 2.

"It's something that I've wanted ever since Day One, and it's happening," McCorvey said from her Dallas home.

Dallas County District Attorney Bill Hill, whose predecessor Henry Wade who was named in the original lawsuit, has not filed a response to McCorvey's appeal. That may put the appeals court in the unusual position of hearing arguments from only one side.

Wade was named in the original case because he was charged with enforcing the Texas law that prevented McCorvey from having an abortion. Hill's office has argued that since that law no longer exists, Hill has no authority to prosecute and should not be sued.

More than 20 Texas law school professors concerned about an unbalanced hearing filed a brief Wednesday asking to be allowed to argue the other side of the case.

"It's important that the court hear from somebody representing the position that the district court took, which I think is clearly right," said David Schenck, a lawyer representing the professors. "At this point, the case is moot, and she's presenting at best a political question."

The Supreme Court decision came after McCorvey had her baby. The baby was the third child McCorvey put up for adoption; she was a 21-year-old carnival worker at the time.

She publicly identified herself as Jane Roe in 1980

word. Puts it all in perspective.

 

Good for her, doesn't mean she's going to get her wish.

 

I think having to carry out a pregnancy would cause psychological harm for some women, and it should be up to the woman and her doctor to decide whether that's the case or not.

 

More analysis on the 5th circuit:

New reports say that the 5th Circuit has agreed to hear oral arguments in the case of McCorvey v. Hill on 2 March. This is very good news, though the likelihood of McCorvey winning is, in my estimation, close to nil.

Norma McCorvey is the original plaintiff from Roe v. Wade. She became a Christian and pro-life years after the infamous decision, saying she felt she had been used by her attorneys in their zeal for nationalized abortion rights. Last summer, with the help of the Justice Foundation (a pro-life legal group), McCorvey filed a Rule 60 motion to have the decision overturned - Rule 60(b)(5) providing for parties to an action to have a decision overturned after the fact, if "it is no longer equitable that the decision have prospective application." In this case, McCorvey is trying to prove that that the judgment in Roe is no longer just or equitable by making three arguments:

-Affidavits from 1300 post-abortive women show that abortion is devastating and harmful to women,

-Scientific evidence not available in 1973 now shows conclusively that life begins at conception (since part of the original Roe decision was based on inherent uncertainty about when life began - not a "personhood" question, and

-Texas (the state in which the case originally arose) now has a ?Baby Drop Off? law under which the state takes responsibility for all unwanted children, substantially reducing the burdens of childcare on pregnant women (another basis for the court's original decision).

If this evidence proves that the judgment in Roe was unjust, the court could overturn it. The district court dismissed the motion after two days, saying the motion hadn't been filed in a "reasonable" time - the reason I was originally afraid the whole case would sink. But it can plausibly be argued that the timing is reasonable in light of when the affidavits were gathered, the scientific evidence was discovered, and the new Texas law was passed. The Supreme Court has overturned decisions on 60(b)(5) motions before, such as in Agostini v. Felton - a 12-year-old precedent - but unfortunately, I still think that on appeal McCorvey is unlikely to win (or even win a full hearing from the district court, on remand). 12 years is different than 30, especially since this particular Court has several times ruled on abortion cases in part on the grounds that society now relies on the availability of abortion (that is, they have specifically affirmed this precedent just because it is precedent). Agostini just involved separation of church and state issues in education. Also, even if the 5th Circuit finds McCorvey's evidence compelling, they still have discretion under the rule (they ?may? relieve a party from final judgment upon motion and such terms as are just) and may still refuse to overturn the judgment.

Still, you count your blessings. The media completely ignored McCorvey's motion when it was filed last summer - maybe a Court of Appeals hearing will at least attract some *notice*. And the case that will eventually overturn Roe and either send it back to the states, or make abortion illegal almost entirely, has to come from somewhere. Why not from Roe herself?

 

Scientific evidence not available in 1973 now shows conclusively that life begins at conception (since part of the original Roe decision was based on inherent uncertainty about when life began - not a "personhood" question


Really? I never read the evidence, please, do post this.

 

That's the argument McCorvey is making, yes. And a life is begun at conception; most pro-choice advocates don't deny this but just say that the law doesn't protect that life as a "person" deserving of protection.

 

-Affidavits from 1300 post-abortive women show that abortion is devastating and harmful to women,

Isn't it the pro-life crowd which says that millions (I forget how many millions, wanna say 30?) of fetuses have been aborted since Roe v. Wade? So, out of those millions, 1300 have signed affidavits.

Oh yeah, it's rampant. [/sarcasm]

-Scientific evidence not available in 1973 now shows conclusively that life begins at conception (since part of the original Roe decision was based on inherent uncertainty about when life began - not a "personhood" question, and

That's funny, tell another joke! Saying life begins at conception is an OPINION.

-Texas (the state in which the case originally arose) now has a ?Baby Drop Off? law under which the state takes responsibility for all unwanted children, substantially reducing the burdens of childcare on pregnant women (another basis for the court's original decision).

Yeah, cause nothin' says lovin' like "I don't want you, and I'm giving you to the state (who just has a beautiful track record on raising people)."




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