Now he's issued subpoenas for medical records in abortion cases. I understand why he's doing it, and that he thinks that it'll be just fine if the woman's name and address are deleted, but gosh-darnit, we have been suffering under the stupid HIPAA laws for a year or so now and even legitimate users of medical information can't get it, but he thinks he should have it?
And he made the illogical statement that if the records aren't submitted to him, then the doctors who brought the suit in the first place shouldn't be allowed to testify.
Horse pucky!
I can't stand this guy.
And here's why you should dislike and distrust him as well, regardless of your stand on abortion -- because...
HE IS TRAMPLING ON THE RIGHTS OF EVERYDAY CITIZENS with every action he takes.
The man is as un-American as you can get.
He really should be serving time in jail, not running the Justice Department.
Ugh!
Posted by Zotto! (Member # 4689) on :
"Blackjack" by Everclear (song excerpts written 'bout Mr. Ashcroft)
Scary John gets his strong arm on; he can break me and make me happy with his black, jack.
Scary John has the heavy hand on; he smiles without his eyes, nice and easy with his black, jack.
Don't tell me that you didn't see this coming down, please dont say that this isn't what you wanted now.
Scary John always knows what's going on, he is everywhere, happy with his black, jack.
This is your american dream?
Everything is simple in the white and the black, you will never need to see the grey anymore, you will never have to be afraid when you are happy with the black, jack.
Scary John wants to kill my song: he doesn't like the fact I'm not happy with the black, jack.
This is your american dream?
Edit: er...is this appropriate to post? Someone lemme know if not...
[ February 13, 2004, 08:52 PM: Message edited by: Zotto! ]
Posted by Rohan (Member # 5141) on :
Do you have any specific instances for your allegations? Besides pop tunes?
Posted by Slash the Berzerker (Member # 556) on :
How about the fact that he is trying to get the abortion documents? Or did you mean OTHER than that?
Posted by Farmgirl (Member # 5567) on :
I hadn't heard of this particular turn of events, Bob -- care to enlighten us with some links?
Why is he wanting these?
Farmgirl
Posted by Bob_Scopatz (Member # 1227) on :
If this is not a clear case of a government run amok, justifying the means with its ends, I don't know what is.
This man is seriously a danger to us all.
Posted by Shan (Member # 4550) on :
I suspect ole' John worshipped McCarthy.
Posted by Lalo (Member # 3772) on :
Out of interest, are there any reasons to like the man? Or is he, as long suspected, just another unqualified official who has his job only because the Religious Right thinks he can advance their agenda, at no matter what cost to the country and everything it stands for?
Posted by Rohan (Member # 5141) on :
well, just to be quick: Despite the ACLU's insistence that the Patriot Act gave the executive branch "sweeping new powers that undermine the Bill of Rights," all of the snooping, sneaking, spying and other prying powers allegedly granted to the feds still have to be approved by judges, as always.
Most of these powers already existed for criminal investigations, but the government thought it might be a good idea to use them against al-Qaeda as well as the mob. What about the government's newfound power to read all of your e-mail through systems like "Carnivore"? Well, maybe that should bother you, but the Patriot Act constrained the scope of the government to use Carnivore, not the other way around.
Not to mention everyone-on-this-forum's hated Patriot Act passed the Senate 98 to 1 and the House by 357 to 66. Indeed, with the exception of Dennis Kucinich, all of the senators and representatives currently running for president on John Ashcroft's back voted for it.
I assume you have some specific provisions of it that you think are evil? Or do you just start from the proposition that Ashcroft is evil because he was appointed by Bush and therefore he can't do anything good? Cause if it's the last, I apologize for getting in the way of your two-minute hate. please, carry on.
Posted by Bob_Scopatz (Member # 1227) on :
quote:all of the snooping, sneaking, spying and other prying powers allegedly granted to the feds still have to be approved by judges, as always.
Yes, but WHICH judges. Do you know, for example, that there is basically a panel of judges working INSIDE the Justice Department that approves all their BS? Go look, you'll find it. They slipped in this 3 or 5 judge panel, can't remember what they called it. But basically, they are the ones who decide whether J.D. can do whatever the heck it wants.
That's 1.
Two, I'm in favor of impeaching every last congressman and Senator who voted in favor of the Patriot Act. They are traitors.
Why people aren't just rioting in the streets over this, I don't know, but I can tell you right now that it is the kind of law that does nothing but restrict the rights of EVERYONE, not just "the criminal element" as they try to tell us.
That our representatives voted for it is a reason to vote them out of office, not shut up about it.
I come from perhaps a different perspective than many on this board. I remember what things were like back when your life could be ruined if someone branded you a "Communist" or "UnAmerican" because of your exercising the right of free association. I remember when our President used break-ins and wiretaps to gain an unfair advantage in an election.
And stories like 1984 by George Orwell weren't just an overwrought piece of fiction. There were too many eerie parallels to what our government was doing and what other governments were doing. Orwell was writing about totalitarian regimes, especially Communism. But what he hit upon was something even deeper -- the mass psychology of running a nation. And it applies even if you are running a democracy. One major example: the names of things matter. And if your radar doesn't start shouting alarms when you hear a politician call something "The Patriot Act" well then you are just asking to be suckered. There is very little "PEACE" in a Peacekeeper missile.
The chicken-littles who voted for the Patriot Act were over-reacting. And the people in the Administration were quick to capitalize on that opportunity -- the fear and the anger in the immediate aftermath of the WTC and Pentagon attacks. People feeling vulnerable do some awfully scary things. This was one of them.
Mark my words, that law will lead to some collossal mistakes unless the next President and Congress modify it to the point of non-existence.
Posted by Rohan (Member # 5141) on :
Bob, tell me you read the Patriot Act before your sky-is-falling diatribe. And which parts of it are turning us into Oceania exactly? Seems like if that many Congressmen and Senators voted for it, it must have some merit. Oh, right, the gigantic government conspiracy. sorry, I guess you got me there. if there's no evidence, it must mean there's a cover-up.
p.s. thanks for mentioning the HUAC and the like, from your vast store of personal experience. If only there were newspapers and books so the rest of us could learn about this valuable part of American history.
Posted by Bob_Scopatz (Member # 1227) on :
No need to get snide. I wasn't trying to belittle you or mock your opinion. I just don't have a lot of trust in this Administration and in Ashcroft in general.
One final note before I stop posting in reply: All the votes in the Politburo were unanimous. Must've been TONS of merit in their decisions.
Posted by Lalo (Member # 3772) on :
Heh. Rohan, as much respect as I'm sure you believe we all hold for you due to your disrespect to Bob, I think I'm going to enjoy watching him smack you down.
Posted by Bob_Scopatz (Member # 1227) on :
It's not that kind of an issue.
Basically, the problem is that I see this as a matter of principles. I believe that our Constitution guarantees freedoms and it is a good thing to expand those freedoms to the best of our abilities. That what we want to leave to our children is a more free, more open and yes, a more equal society than what we inherited from our parents.
I see efforts like the attempt to limit Miranda rights (surely everyone caught the attempt to make it NON-MANDATORY to advise suspects of their rights) as contrary to our principles. I see an administration far too willing to incarcerate people without due process, without access to lawyers or family, and to do this to citizens as well as "enemy combatants."
I see a small group of people who are willing to make the ultimate mistake -- sacrificing freedom for a false sense of security -- and it makes me angry. We don't have to look far for lessons in how well repression and divisiveness work for our society.
So on basic principles I oppose the direction that the Justice Department has taken. I oppose the attempts to develop super-snooping software that can mine transportation records and medical records, and so on.
I think the people pushing this stuff are not heroes or defenders of America. I think they are scared and power hungry. And this was an opportunity to push forward an agenda that has nothing to do with what's right for America, but has more to do with keeping their party in power and feeding money to their cronies.
And if someone can explain to me how the Patriot Act deserves that name, then I will back down.
Posted by Rohan (Member # 5141) on :
ouch, Lalo, losing your respect hurts. Of all people, I didn't expect YOU to turn on me.
and I apologize for appearing snide, Bob. (still, smack away) I just thought it odd that you accuse the Congress of a sky-is-falling mentality, then proceed with one yourself. And it is a bit dismissive to think most of the rest of us don't remember or know anything about Nixon or HUAC.
More to the point, I would have more respect for your opinions on this subject if they were based on something that the rest of us could evaluate, rather than just "that guy bugs me." It just is so Lalo-like. come on Bob, you're better than that.
Posted by Rohan (Member # 5141) on :
Let me clarify one position of mine. Can you see the difference between
quote:I can't stand this guy.
And here's why you should dislike and distrust him as well, regardless of your stand on abortion -- because...
HE IS TRAMPLING ON THE RIGHTS OF EVERYDAY CITIZENS with every action he takes.
The man is as un-American as you can get.
He really should be serving time in jail, not running the Justice Department
and
quote: So on basic principles I oppose the direction that the Justice Department has taken
?
The first one makes me think you're a crank. The second makes me think, "is there merit to these ideas? let's reason it out."
you know?
Posted by Bob_Scopatz (Member # 1227) on :
Well, it's based on him trying to subpoena health records of women.
By the way, the Patriot Act has many interesting and hard to find provisions that are truly alarming.
For example, it makes a Department Head responsible for the final determination of whether an errant employee (one who a court says violated the protections built into the Patriot Act). In other words, Ascroft orders an agent to do something slightly illegal under the Patriot Act. A judge says it looks fishy. Ascroft gets to decide if the agent gets punished.
This is even true if the court determines that there WAS a clear violation of the act.
In other words, the court finds the agent guilty, but Ascroft gets to conduct his own investigation to see if any disciplinary action is warranted. It's not up to the court to decide.
Uh huh.
And then there are some chilling statements like this:
quote:In considering a claim filed under this section, a court may admit evidence that is otherwise inadmissible under the Federal Rules of Evidence, if the court determines that the evidence is reliable, and that compliance with the Federal Rules of Evidence may jeopardize the national security interests of the United States.
And here's just one jewel from Patriot II (Jan 2003 draft).
quote:This provision would enable the government to obtain credit reports on virtually the same terms that private entities may. Specifically, it would amend § 1681b(a)(1) to allow law enforcement officers to obtain credit reports upon their certification that they will use the information only in connection with their duties to enforce federal law. This certification parallels the existing requirement that a private entity must have a "legitimate business need" before obtaining a credit report. In addition, to avoid alerting terrorists that they are under investigation, this provision would prohibit (absent court approval) disclosing to a consumer the fact that law enforcement has sought his credit report.
And, the Justice Department would be "above FOIA" without any review possible if they claim "national security":
quote:Although existing Freedom of Information Act (FOIA) exemptions 7(A), 7(C), and 7(F) (5 U.S.C. § 552(b)(7)) permit the government to protect information relating to detainees, defending this interpretation through litigation requires extensive Department of Justice resources, which would be better spent detecting and incapacitate terrorists. This provision thus establishes a specific authority under Exemption 3 of the FOIA to clarify what is already implicit in various FOIA exemptions: the government need not disclose information about individuals detained in investigations of terrorism until disclosure occurs routinely upon the initiation of criminal charges.
(Given that they can hold people without charges indefinitely, the idea that they also don't have to even go to court to defend against a FOIA request seems like way too much power for them to have.
This is just a small tip of it.
There's some judicial review built in to most of the provisions in the two laws. But usually, judicial review is specifically limited in the law. Instead of having to go to Grand Jury to get approval for a subpoena, the JD has the power to issue subpoenas administratively. And then, only if the person FIGHTS will a court get involved.
So, they can get records from schools, credit bureaus, actual creditors, and anyone else who is willing to hide behind the shields built into the law as well -- acting in good faith compliance with the law protects you from being sued, even if you release information that would've been private and damned hard for the government to get before Patriot passed.
Anyway, I feel like you probably knew all this already and think it's no big deal.
Sorry about the apparent assumption that you didn't know about Nixon. I remember it like it was yesterday and I guess the thing that bothers me so much is that the secretiveness of that administration and the current one seem so similar. The one good thing about Nixon's misbehavior is that it seemed to spawn a wholesale rethinking of openness in government. Bush et al. set out specifically to roll that back. They even created special test cases -- like not disclosing the names of participants in the crafting of the Energy Bill in the early months that they were in power.
Why keep that secret? Was it really because it would embarrass the executives involved? Yeah right. I think it was because they don't like government in Sunshine laws and they want to do things without anyone knowing about it until it is too late.
Posted by Bob_Scopatz (Member # 1227) on :
All...
let's dial down the sarcasm.
There are legitimate reasons to believe that we needed reform in our law enforcement practices in this country. Lots of criminals know how to work the system to their advantage. And terrorists are a legitimate threat.
I'm worrying about things that are "potential" abuses of a new law.
Rohan, and I assume many others, are worried about not tying the hands of law enforcement with outdated laws about wiretapping when there are no longer any wires.
As for the stuff that made you think I'm a crank, Rohan, all I can say is that Nixon was a criminal. He deserved to go to jail. Given that example, I have to say that I think Ashcroft has overstepped his authority sufficiently that were he not part of the administration, but rather some law enforcement official out in the real world, he would've been in serious trouble already.
And I do believe that passage of the Patriot Act is a form of treason in the sense that anything which works to destroy the government and especially the Constitution of the United States is treasonous. But more importantly, it is a treason against the people of the US because it makes it possible for our government to hold people without due process and without being answerable to anyone just so long as they utter the words "national security."
Seriously, they need do nothing to prove the case. They just utter the words and there's not a damned thing anyone can do to alter the course events away from what the Attorney General decides they should be.
Heck, on a majority of the positions, he doesn't even have to consult with anyone or report anything.
The very NAMES of the people held under this act can be protected as secret under the same broad heading of "national security."
I wouldn't want Mother Theresa to have these powers. Or Ghandi.
And I feel like I've seen enough of Ashcroft to know he's a few standard deviations below Ghandi and Mother Theresa.
Posted by Rohan (Member # 5141) on :
Bob, first of all, I actually agree with you that this administration is too tight-lipped for my taste. As someone who wants to give them the benefit of the doubt, they sure don't provide a lot for a wanna-be supporter to go on. So you're right there. As for the Patriot Act, I do view those passages that you quoted differently than you, especially since many of them (as you yourself pointed out) are examples only of "potential" abuses. Like the clause that gives the JD power to subpoena the library records of someone suspected of terrorism. It's been used a grand total of 0 times. It may be that the Patriot Act oversteps constitutional bounds, or at least the Supreme Court could so find. Which they are welcome to. Surely you don't think Bushie's power reaches that far, when he can't even get a VOTE to happen on federal circuit judges? And even if it is a criminal-type overreaching, did John Ashcroft vote for it? But it's his fault for enforcing the law? Your view of treason is broader than mine. I don't consider it treason for someone to vote for a law I don't agree with. For example, some people have chosen to read a right to privacy into the Constitution. I don't see it there, but if they do and they pass a law based on it, I'm not calling for their heads. The attitude that broke my patience tonight is "if you don't agree with my interpretation, you're not only an idiot, you're a dangerous bigoted, evil idiot. Who should be locked up."
I mean, I know accusations are a dime a dozen (especially when it's in for a dime, in for a dollar) but the kind of charges you level do not engender civil debate. You mentioned HUAC and someone else mentioned Tailgunner Joe but you crying "treason!" is only different because you ain't from Wisconsin, if you get my drift. Such vitriolic accusations without specific instances or reason to back it up (well, to be honest, even WITH reasons to back it up) just lead most people who are not already toeing the party line to roll their eyes. like this And that's not good if you are really trying to convince people of the merit of your arguments, rather than the depth of your passion. I mean, the rest of us get it. You don't like Bush or Ashcroft or anyone in his administration. Fine. Next topic.
So, was any of that too sarcastigorical? (I am not being sarcastic)
[ February 14, 2004, 03:34 AM: Message edited by: Rohan ]
Posted by Dagonee (Member # 5818) on :
Bob, back to the incident that sparked this thread: do you know what "discovery" means in a legal context? Experts will be testifying that a procedure is medically necessary. The opposing side is entitled to information relevant to that claim.
In a civil proceeding, people are generally entitled to compel relevant testimony from opponents and third parties. I can't find the federal standards, but in Virginia requests for medical records must be filed with 15 days notice to allow those whose records are subpoenaed to move to quash. The standards used are:
quote:(i) the particular purpose for which the evidence was collected (ii) the degree to which the disclosure of the records would embarrass, injure or invade the privacy of the individual (iii) the effect of the disclosure upon the individual’s future health (iv) the importance of the information to the law suit or proceeding; and (v) any other relevant factor.
Now, redacting the names helps mitigate (ii) and (iii). (i) and (iv) are clearly met - an expert is testifying that based on his experience, such procedures are medically necessary. The opposing side is entitled to review the records upon which that opinion is based.
Dagonee
[ February 14, 2004, 09:31 AM: Message edited by: Dagonee ]
Posted by Bob_Scopatz (Member # 1227) on :
quote:Like the clause that gives the JD power to subpoena the library records of someone suspected of terrorism. It's been used a grand total of 0 times.
I don't care how many times it is used. Why have that power if it isn't there to be used. When it is used, it WILL be an abuse.
As for the treason comments, I guess if I were trying to actually get them tried for treason I could see your point. To me, it's just a way to wake people up a little bit to begin a discussion.
Sorry if it turned you off.
I do think this law is unconstitutional and I don't like it coming from a crew that hypocritically says they are "defending the Constitution" on things like abortion and gay marriage.
Dagonee --
quote:Now, redacting the names helps mitigate (ii) and (iii). (i) and (iv) are clearly met - an expert is testifying that based on his experience, such procedures are medically necessary. The opposing side is entitled to review the records upon which that opinion is based.
It merely helps mitigate. If the women's medical histories are IN those files, then they can be traced. That was the entire premise of HIPAA, that there is basically NOTHING short of presenting aggregate data that can fully mitigate the fear of releasing medical information on individuals.
Secondly, I've seen it in plenty of trials where the expert witnesses present their evidence and the opposing side's expert witnesses present theres. You don't get copies of each others fully backup information during discovery. Just the evidence that will be provided to the court.
So, if they aren't bringing individual women's case histories into court as evidence, guess what...it's not discoverable.
At least as I understand the rules.
Maybe a lawyer could explain it better.
I've only helped prep for some expert witness testimony in a few trials and none of my analyses have EVER been discoverable. And certainly NOT the data files I used to run the analyses. I see this as equivalent.
Posted by AvidReader (Member # 6007) on :
I'm a little confused. If one side says the procedure is needed to protect women's health, wouldn't they need the medical records to submit as proof? And if the other side says no the procedure isn't necessary, don't they also need the records o show other courses of action were available? Properly edited, it sounds like necessary evidence to me. Posted by aspectre (Member # 2222) on :
And one side consists of patients and those who provide medical treatment, while the other side is just a bunch of busybodies totally unqualified to make any medical judgements with absolutely no basis to have access to any patients' medical records.
Ashcroft should prosecute himself and his cohort for practicing medicine without a license.
[ February 14, 2004, 03:37 PM: Message edited by: aspectre ]
Posted by Dagonee (Member # 5818) on :
quote:Except as otherwise stipulated or directed by the court, this disclosure shall, with respect to a witness who is retained or specially employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve giving expert testimony, be accompanied by a written report prepared and signed by the witness. The report shall contain a complete statement of all opinions to be expressed and the basis and reasons therefor; the data or other information considered by the witness in forming the opinions; any exhibits to be used as a summary of or support for the opinions; the qualifications of the witness, including a list of all publications authored by the witness within the preceding ten years; the compensation to be paid for the study and testimony; and a listing of any other cases in which the witness has testified as an expert at trial or by deposition within the preceding four years.
Posted by Dagonee (Member # 5818) on :
quote:And one side consists of patients and those who provide medical treatment, while the other side is just a bunch of busybodies totally unqualified to make any medical judgements with absolutely no basis to have access to any patients' medical records.
Ashcroft should prosecute himself and his cohort for practicing medicine without a license.
Ashcroft is defending a federal law passed by the elected legislature and signed by the elected executive. The law is being challenged by a private group of citizens on the theory that the procedure is medically necessary. Whether or not it is medically necessary will be a matter of fact to be determined by the court.
To prove that matter of fact, the plaintiffs will bring in experts. The experts are being asked for the information that led them to form the opinion they will be expressing in their testimony to the court.
I guess civil rights are only for those people outside the womb, huh?
And if the government doesn't like the look of your heart, it can rip it out?
[ February 14, 2004, 06:32 PM: Message edited by: aspectre ]
Posted by Storm Saxon (Member # 3101) on :
quote: I guess civil rights are only for those people outside the womb, huh?
O.K. Ignoring the debate of when personhood begins, etc...actually, isn't this pretty much legal fact?
Posted by Dagonee (Member # 5818) on :
Storm, no, this is not the current legal reality - the Supreme Court has ruled that state interest in protecting fetuses begins at viability. Which never made sense to me - the point at which the state can protect a person depends on the current state of medical science?
quote:So the government has the right to poke its nose into the womb now, eh?
And if the government doesn't like the look of your heart, it can rip it out?
Hmm. Let me treat your question seriously. No, the heart is not a complete individual organism. An unborn child is - genetically distinct, although reliant on the mother for survival. Kind of like a baby born 2 months premature is dependant on others for survival.
And of course, it's not pro-life people who are ripping things out, is it?
Your question ignores the fact that if the law is unconstitutional, the subpoenas are a necessary part of the judicial proceeding that will determine that.
Dagonee
Posted by aspectre (Member # 2222) on :
The government has no rights whatsoever to muck about within my body -- whatever it's stated intent -- without my openly expressed&witnessed consent.
Pro-choice is pro-life. With the exception of a barely discernable minority, anti-abortionists are pro-death in every other conceivable circumstance except that inregard to a select portion of tissue within someone else's body.
[ February 14, 2004, 10:27 PM: Message edited by: aspectre ]
Posted by Bob_Scopatz (Member # 1227) on :
Dagonee, that excerpt of Civil Law is very interesting. In my case, I provide summary data tables that, I guess, are discoverable. Whereas the data itself, which are NOT supplied to the expert witness, would not be discoverable.
Interesting.
I wonder if these doctors have openned up a real can of worms here. If they reviewed the individual women's charts & medical history and used that to make a decision about the health-related necessity of this procedure, then I guess it would be discoverable.
And, if those doctors turn that stuff over, they'll be in violation of HIPAA and they'd be in trouble for releasing personal health information.
This really sounds like a lose-lose situation all around. I mean, our government is being very heavy-handed (IMHO) and the doctors have exposed their patients to possible release of sensitive information without their consent.
This could get very ugly before it's over.
By the way, if a raw data file is discoverable, can you turn it over in hardcopy? I mean, if someone asked for the records used to determine an outcome in a case, it's something that is technically an asset of my company. We paid to obtain it and work with it to make an analyzable product. Could the other side obtain it for free by subpoena?
In addition, I signed agreements with the states that I bought the data from that I would not release their data files to anyone. It would be an ethical violation to turn those files over to an opposing attorney.
I could always just tell them where to get the data themselves, though....
I guess the parallel to medical records breaks down at that point.
Posted by Dagonee (Member # 5818) on :
quote:Pro-choice is pro-life. With the exception of a barely discernable minority, anti-abortionists are pro-death in every other conceivable circumstance except that inregard to a select portion of tissue within someone else's body.
Pure, unmitigated BS. There's no other word for it.
First of all, almost all anti-abortion folks are also anti-euthanasia and anti-assisted susicide. That's the easy one.
The Catholic Church is anti-death penalty and anti-abortion, as are some other denominations.
And don't get me started on the "piece of tissue" nonesense. It's begging the question.
Dagonee
Posted by Farmgirl (Member # 5567) on :
*gasp* I actually find myself AGREEING with Bob on a great deal of this....
A few years back my brother-in-law had to work for a few months in Singapore. He told me how everyone over there basically has this card that pretty much tracks where they are at all times --use the card to get on the bus, use the card to clock in at work, use the card when making purchases. I imagine somewhere they have a "mother of all databases" that keeps track of all their people.
And I said that could NEVER happen here - the American people wouldn't allow it.
Then 9/11 happened and everything changed. We are allowing the government to do things now that we NEVER would have allowed, as a society, prior to that incident.
While I was a reporter for many years, I relied heavily on the freedom-of-information laws other safeguards to keep local government from doing things behind closed doors. I do think the current trend toward allowing the government to decide what they have a right to know, and what I have a right to know, is frightening. But I don't necessarily see it as a current administration/past administration deal -- I think it is an overall trend in the government, and now that it is rolling, it will be extremely hard to stop.
Farmgirl
Posted by Dagonee (Member # 5818) on :
STANDARD DISCLAIMER - I AM NOT A LAWYER YET. DO NOT RELY ON ANY OF THIS FOR AN ACTUAL CASE.
quote:And, if those doctors turn that stuff over, they'll be in violation of HIPAA and they'd be in trouble for releasing personal health information.
"A covered entity may disclose protected health information in the course of any judicial or administrative proceeding:
...
In response to a subpoena, discovery request, or other lawful process, that is not accompanied by an order of a court or administrative tribunal"
Note, there is a general statement that covered entities may releas information required by law, which has this definition: "Required by law includes, but is not limited to, court orders and court- ordered warrants; subpoenas or summons issued by a court, grand jury, a governmental or tribal inspector general, or an administrative body authorized to require the production of information; a civil or an authorized investigative demand;..."
quote:This really sounds like a lose-lose situation all around. I mean, our government is being very heavy-handed (IMHO) and the doctors have exposed their patients to possible release of sensitive information without their consent.
This happens all the time. A patient suing for malpractice can get patient information about anyone treated by that doctor in some cases.
quote:This could get very ugly before it's over.
Possibly, but this is not the stretch or uncommon event people are making it out to be.
quote:By the way, if a raw data file is discoverable, can you turn it over in hardcopy?
Possibly, but if it's cheaper for you to provide in electronic format, you'll be looking at a possible reprimand from the judge for being uncooperative in discovery. If you're not a party, this is less of a concern.
quote:I mean, if someone asked for the records used to determine an outcome in a case, it's something that is technically an asset of my company. We paid to obtain it and work with it to make an analyzable product. Could the other side obtain it for free by subpoena?
Yes, although they have to promise to only use it for purposes of the relevant civil action. (I know, fat chance, but that's the rule.) Many law suits are constructed solely to get to discovery.
quote:In addition, I signed agreements with the states that I bought the data from that I would not release their data files to anyone. It would be an ethical violation to turn those files over to an opposing attorney.
You can't ignore a subpoena. I believe the proper response is to notify the party to whom you owe a duty of confidentiality and give them an opportunity to quash. At that point, no liability can attach to you.
quote:I could always just tell them where to get the data themselves, though....
quote:I guess the parallel to medical records breaks down at that point.
In some ways. The privacy right attached to medical records will be stronger than almost any other privacy right, but the financial costs will probably be higher in other circumstances. Both are taken into account and weighed against the likely probative value of the evidence to be discovered when deciding whether to force disclosure.
Civil procedure is fascinating, and the possibilities for "sharp practice" are infinite.
Dagonee
[ February 14, 2004, 11:12 PM: Message edited by: Dagonee ]
Posted by aspectre (Member # 2222) on :
"The Catholic Church is anti-death penalty and anti-abortion, as are some other denominations."
The RomanCatholic clergy may be, but even so there is very little overlap between anti-abortion RomanCatholics and anti-death penalty RomanCatholics. The same is true of those other denominations. Irrespective of the official desires of the clergy, a majority of the laity favor pro-choice. Interestingly, those who belong in an officially anti-abortion denomination also have the highest abortion rates by far.
"And don't get me started on the "piece of tissue" nonsense. It's begging the question."
That is the question that Ashcroft is attempting to represent as a client to force a subpoena through the courts, though legally the question has already been settled against Ashcroft's position.
[ February 15, 2004, 12:56 AM: Message edited by: aspectre ]
Posted by Dagonee (Member # 5818) on :
quote:The RomanCatholic clergy may be, but even so there is very little overlap between anti-abortion RomanCatholics and anti-death penalty RomanCatholics. The same is true of those other denominations. Irrespective of the official desires of the clergy, a majority of the laity favor pro-choice. Interestingly, those who belong in an officially anti-abortion denomination also have the highest abortion rates by far.
Can you point to any statistics for either of these assertions? And, the reverse analysis could probably be applied to pro-abortion advocates. Further, the euthanasia argument was, of course, entirely ignored, presumably because there is no way you can refute it.
Face it, your characterization of the pro-life movement as is flat out wrong. Do be good enough to admit it.
quote:That is the question that Ashcroft is attempting to represent as a client to force a subpoena through the courts, though legally the question has already been settled against Ashcroft's position.
No it hasn't. Go back to the In Your FACE thread and read the summary of Roe - an unborn child is not legally treated the same as a "piece of tissue." Why? Because even Blackmun admits that there is more at stake here than a "piece of tissue."
To sum up, you've mischaracterized the pro-life movement (at minimum the euthanasia and assisted suicide overlap disproves your "every other conceivable circumstance" assertion).
You've casually mischaracterized a complex legal situation in absolute terms.
And, I just noticed, you have raised an anti-eugenics argument (or at least implied one) in favor of abortion, ignoring the fact that it is pro-abortion advocates that have traditionally been associated with eugenics. Certainly, pro-life groups have been much more in favor of the life of disabled persons, considering that both at the beginning and end of life people keep trying to kill them.
Dagonee
Posted by PSI Teleport (Member # 5545) on :
quote: Which never made sense to me - the point at which the state can protect a person depends on the current state of medical science?
Actually, I always wondered about this too. It's kind of like saying that a person is "alive" assuming that it can be kept alive outside the womb. So does life begin based on scientific discovery? If a scientist could keep a child alive starting from conception, does it have rights then? How can we base a moral decision on a scientific standpoint?
Complete derailment...just got me thinking.
Posted by rivka (Member # 4859) on :
Except that there ARE practical effects of scientific discoveries.
For example, if they do invent a viable "artificial womb" to which a fetus could be (safely) transferred, then we have a very different discussion, do we not?
Posted by Bob_Scopatz (Member # 1227) on :
The Roe v Wade decision basically divided pregnancy into the three trimesters. During the first trimester, there's no law that can abridge a woman's right to an abortion.
During the 2nd trimester, the "state can pass laws that limit access if it can show that the interests of the state are best served by having such laws."
During the 3rd trimester, you basically can't pass a law abridging the rights to an abortion in cases where it is medically required for the safety of the mother ...and this is the important part "IN THE OPINION OF HER DOCTOR."
So, no law (state or federal) restricting ANY abortion procedure that a doctor says is necessary.
The doctor doesn't have to prove it either. The Supreme court left it up to "normal judicial and professional" procedures to weed out the bad doctors.
So, unless someone is suing (or trying to censure) the doctors alleging that they were performing abortions in the 3rd trimester that were not to protect the woman's health, they don't have to provide squat.
In this case, we have the exact opposite. We have the doctors coming and saying "hey, we've complied with Roe v. Wade and now we're in trouble because of this Federal ban that runs counter to the original law -- tell those guys to back off."
That's what this case is about, not the woman's health status, but the government's law that doesn't stick to the statements in the Roe v Wade decision about doctors being the final determinants of who is at risk or not.
The more I think about this, the more I believe that the law passed a year or so ago is just flawed. Why? Because it takes the decision out of a doctor's hands and puts it in the government's.
I'm not saying doctors are perfect, but they are at least trained in medicine.
Posted by rivka (Member # 4859) on :
I agree. But then, I never much cared for Ashcroft. Posted by Dagonee (Member # 5818) on :
Bob,
You do know that there have been 30 years of cases refining and distinguishing Roe, right? I don't have time to do the research, but I believe Casey is more directly relevant here.
But like I said, I don't have time to do the research. I do know that the 3-trimester analysis is much more complicated now.
Dagonee
[ February 15, 2004, 08:09 PM: Message edited by: Dagonee ]
Posted by TomDavidson (Member # 124) on :
aspectre, as an agnostic pro-lifer myself, I feel compelled to point out that you've generally misrepresented my position.
Posted by Bob_Scopatz (Member # 1227) on :
Dagonee...how many times has the Supreme Court taken it up in the past 30 years?
And has ANY court ever decided in favor of removing the doctor's opinion as the deciding factor for late term abortions?
Posted by TomDavidson (Member # 124) on :
Bob, would you agree that we should perhaps require post-operation review of all third-trimester abortions, to conclude that they were in fact medically necessary? In all other cases resulting in the death of a patient, this kind of review would be routine.
Posted by rivka (Member # 4859) on :
It would be reviewed WITHIN the hospital/medical practice, though. Not under government auspices.
There is a huge difference.
Posted by TimeTim (Member # 2768) on :
quote: USA PATRIOT Act (acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
That is what the PATRIOT Act stands for. I think it's ridiculous that the acronym was specifically created to spell that.
I just wonder how many of you knew that.
Regarding Ashcroft himself, I just love that he had the statue of Justice covered because of the bared breast. That is absolutely priceless.
[ February 16, 2004, 12:43 AM: Message edited by: TimeTim ]
Posted by TomDavidson (Member # 124) on :
"There is a huge difference."
I agree. At what point do you believe the government should investigate reports of an abnormally large number of third-trimester abortions being performed at a given hospital?
Posted by Suneun (Member # 3247) on :
Tom: It would seem that if the doctor were sued for a specific abortion by the woman or her immediate family, then the information pertaining to that abortion would need to be accessible to the courts.
Otherwise, an abnormally large number of 3rd trimester abortions could be researched by a researcher under HIPAA. This generally means going through many many hurdles designed to protect the privacy of the individuals.
If the government in the current abortion case does anything that wouldn't pass through HIPAA, then I think they're doing something wrong.
Posted by TomDavidson (Member # 124) on :
How would a researcher know to research an abnormally large number of third-trimester abortions if these numbers were not made public and/or reviewed already?
While I agree that certain elements of privacy must be maintained, I think there's a degree of oversight here that MUST be possible to prevent obvious abuse.
Posted by Suneun (Member # 3247) on :
Aren't clinics required to maintain some general statistics?
Posted by TomDavidson (Member # 124) on :
But which statistics are relevant to the issue of third-trimester abuse that do not also violate some level of patient privacy?
Posted by Suneun (Member # 3247) on :
Well apparently simply the number of abortions provided in each segment of time (like, lets say, 4 week segments) would be enough. Because as soon as you see a high number of abortions, you can apply for research.
Posted by ClaudiaTherese (Member # 923) on :
HIPAA is very, very weird, very murky. You cannot analyze data which are traceable to an individual person ("identifiable") unless you already have a professional reason to have access to that data. Additionally, even data one does have access to for legitimate work reasons cannot always be analyzed for other work reasons (so, for example, the same physician may have a database he can use to assess some outcomes, but not others).
The number of clinical research applications which would have automatically been approved at UWisconsin has dropped by 75%, according to the IRB. That's sorta scary. Mind you, I'm for HIPAA, and it still scares me.
Posted by ClaudiaTherese (Member # 923) on :
Suneun, I am confused by the details of HIPAA myself, and I'm still working out the basics of how it applies to research. I will try to piece together something useful in another thread.
I was, however, astonished at the restrictiveness placed on research amongst my colleagues in residency. Our IRB chair gave an eye-opening presentation on the Byzantine nature of the rules.
Posted by Suneun (Member # 3247) on :
CT: I had the unfortunate luck to deal with HIPAA last summer. I pased the ethics quiz, wrote up the forms, and got approval from the myriad folks who needed to okay the study. It took, well, ages...
Anyhow. I think that broadly defined statistics like # of abortions performed for each trimester or each segment of time would be sufficient to show "abormally large number of abortions." And in the original case that spawned this thread, I don't know how much Ashcroft will concern himself with the privacy rights of the patients. Maybe a lot, maybe none at all. But my test is whether their procedure would pass HIPAA. Because the government cannot be above its' own laws.
Posted by ClaudiaTherese (Member # 923) on :
We had people on the review committee for HIPAA who weren't aware of some of the ramifications, much less the researchers. I'd love to hear about your experiences -- what was your research about?
On the other hand, there is precedent for breeching patient privacy. As far as I know, the Public Health Department still tracks reportable diseases. (How does HIPAA affect, say, syphilis tracking, or TB? I don't know.) Could the scaffolding of the current system be used to track third-trimester abortions? Would there be similar grounds on the basis of public interest/safety?
Posted by Dagonee (Member # 5818) on :
Why is almost everyone in this thread ignoring that a) turning over the records does not violate HIPAA, and b) seeking the records is well within the bounds of normal discovery?
If you want to argue the desirability of the statute at issue here, that's one thing. But trying to put a sinister spin on the Justice Department using normal, acceptable discovery mechanisms in the course of carrying out its job in defending a federal law is a little beyond the pale.
This is a case of certain individuals challenging the constitutionality of a given law, seeking to introduce expert testimony in support of their challenge. The executive branch, fulfilling its duty in defending the law, is seeking access to the data underlying the expert testimony.
That's all that's going on here.
Dagonee
P.S., In other words, the statement that sparked my interest in the thread ("If this is not a clear case of a government run amok, justifying the means with its ends, I don't know what is.") has been refuted and no one has either admitted this or explained why the refutation is invalid.
[ February 16, 2004, 11:23 AM: Message edited by: Dagonee ]
Posted by Suneun (Member # 3247) on :
Dagonee, I'd just want the privacy of the individuals in question protected. The only way I know how to do this is through HIPAA. This generally entails removing all personally identifying information, and usually aggregating the data so the individuals cannot be identified. If Ashcroft is insisting on the privacy of every individual, then so be it.
But IANAL, and I don't know anything more about this case beyond a few news articles. -------- CT: I had a rather feeble research project, to tell the truth. The hypothesis is that children diagnosed with Rolandic Epilepsy would not show any greater frequency of learning disabilities than the average population. We scanned the EEG reports for diagnoses of rolandic epilepsy at the pediatric neurology department at a local hospital. Then I retrieved records for the patients in question. I analyzed the charts for any reports on learning disabilities and recorded data on Apgar scores, EEG findings, other illnesses, etc.
Unfortunately, there weren't enough patients diagnosed with rolandic epilepsy, and many patients had only come in for an ER visit so we didn't have their family doc records. Also, the hospital recently moved their records to an off-site microfiche center owned by a 3rd party. I spent a month trying to get permission to request those files and get an official fund request from the office. Secretaries and Department Chiefs kept going on vacation.
With HIPAA itself, I just had to do the silly ethics quiz, fill out half a dozen forms describing the research project in detail, and get various people to vouch for me. The main annoyance was that when I finally got approval, they apparently didn't notify anyone. So I only found out two weeks later when I called up to check ("Oh, we already approved your study. Did you not get the paperwork?").
Mind you, the HIPAA stuff was a little silly, since technically I'm already allowed to work with patient data under the Education section of HIPAA. But they were very careful because a wrong move can get you fined for something like $100,000 per incident.
Posted by ClaudiaTherese (Member # 923) on :
quote:turning over the records does not violate HIPAA
I'm not sure this is so clear, Dagonee. How would you word the subpoena to get what you think is necessary? What party would file the subpoena, and for exactly what information?
Posted by ClaudiaTherese (Member # 923) on :
quote:Mind you, the HIPAA stuff was a little silly, since technically I'm already allowed to work with patient data under the Education section of HIPAA.
But you couldn't publish based on the data you accessed for educational reasons, right?
Posted by Suneun (Member # 3247) on :
Bah, publish =)
Yeah, I had to present a summary of findings to the organization who gave me the grant. So because of that, I had to file under HIPAA.
Posted by ClaudiaTherese (Member # 923) on :
Parts of it are so bizarre.
But congrats on the research -- it was a good question. Maybe you can pursue it further later.
Posted by Dagonee (Member # 5818) on :
CT, I'm assuming you've read my previous posts in this thread, so I won't repeat those portions.
quote:How would you word the subpoena to get what you think is necessary?
Wording? Hmm, haven't drafted subpoenas before. Something like "the medical records for each patient history upon which the expert bases his opinion that the subject procedure is medically necessary, with specific non-medical identifying information removed."
quote:What party would file the subpoena, and for exactly what information?
In this case, the Defendant would file the subpoena, in order to obtain the information upon which the Plaintiff's expert opinion is based. This allows the Defense to have its own experts challenge the Plaintiff's experts' conclusions.
As for the information, I would want the details of any information used by the expert in arriving at his opinion, which would probably include the medical history that led to the decision to perform the procedure.
Let me re-emphasize - HIPAA is meant to regulate how medical care providers and other "covered entities" protect the privacy of patient information. It made no changes to the rules of evidence related to medical information. And it specifically authorizes release of information in response to subpoenas if certain procedural protections are followed.
Dagonee
Posted by Dagonee (Member # 5818) on :
Let me clarify: if a subpoena is upheld by the court (survives a motion to quash), it is categorically not a violation of HIPAA to turn the information over - this is explicit in the text of the regulations I linked earlier.
My understanding, which is less concrete but based on a decent understanding of HIPAA, is that nothing in HIPAA changes the analysis used by a court in deciding whether or not to quash a subpoena. There might be case law or other statutes that would assist the plaintiffs in quashing.
This is what I meant when I said nothing in HIPAA prevents responding to the subpoenas.
Dagonee
Posted by Bob_Scopatz (Member # 1227) on :
Two points:
1) Other hospitals have successfully fought Justice Department subpoenas of medical records in third trimester abortion cases already. The basis of the objections has been patient confidentiality and the courts agreed that even though the records are "cleansed" there is still a violation of privacy. So the government didn't get the records in the prior cases. This time it's a different court, but the privacy issue is still the basis for the objection to the subpoena.
2) Just wanted everyone to know that the State of Texas has just opted out of HIPAA. According to our state's attorney, HIPAA no longer applies in TX. I'm not joking. The state's laws have been ruled to supercede HIPAA.
Posted by Bob_Scopatz (Member # 1227) on :
quote:Bob, would you agree that we should perhaps require post-operation review of all third-trimester abortions, to conclude that they were in fact medically necessary? In all other cases resulting in the death of a patient, this kind of review would be routine.
According to the original Roe v Wade decision, as I read it, the decision is up to the patient's doctor. States were given the right to restrict access to the procedure unless it was needed to preserve the woman's life. If a state passes a law, and a doctor is operating outside the law, then there are other ways to get them besides requiring a review of every such case.
IMHO.
Posted by ClaudiaTherese (Member # 923) on :
Dagonee, I think there are more barriers to getting the initial subpoena to go through than may be apparent. That is, perhaps people are not so much "ignoring that turning over the records does not violate HIPAA [if a subpoena is upheld by the court (survives a motion to quash)]" as arguing that the subpoena should not survive the motion to quash.
If the subpoena is seeking information regarded as Protected Health Information (PHI) under HIPAA, then one of the following (I think) must be in effect for you to be protected in responding as requested to the subpoena:
1. the person whose records are being subpoenaed provides a written authorization permitting disclosure of the records; or
2. you receive "satisfactory assurance" [there is further qualification for this term] from the requester that the person of record has been notified of the subpoena and has not objected; or
3. you are aware that the court has entered an appropriate protective order regarding the PHI; or
4. that subpoena is accompanied by a court order requiring you to produce tha person's records.
Just the subpoena isn't enough. Ashcroft seems to be just pursuing the subpoena, which implies a disregard for the rest of the requirement (as if it didn't apply in this case).
Or am I missing something? Was, e.g., a court order sought before the subpoena was filed?
Posted by Dagonee (Member # 5818) on :
None of the rest can occur without the subpoena. So he's not ignoring those requirements, he's embarked on the first stage of the process that will satisfy those requirements.
Dagonee
Posted by Dagonee (Member # 5818) on :
In other words, he doesn't get a court order to issue the subpoena. He issues the subpoena. The entity in control of the record holder must perform the required notifications. If there are no objections, then the subpoena must be honored. If there are, then the court will issue an order either upholding or quashing the subpoena.
In other words, the subpoena is the request. The court order is the demand. The first is issued by parties in civil cases. The second is issued by the judge.
Dagonee
Posted by Dan_raven (Member # 3383) on :
One comment about poor Mr. Ashcroft who is only doing his duty to prosecute a law that Congress passed and the President signed....
does anyone else remember Mr. Ashcroft using the money we pay him to protect us to campaigning across the country to pass Patriot II? His support of Patriot, and constant protection of itis why he, and not Congress, which has sought several times already to cut part of it only to have Mr. Ashcroft fight to keep it hole, is why we link Mr. Ashcroft with Patriot Act.
But Bob is correct in stating that "If [the physicians] reviewed the individual women's charts & medical history and used that to make a decision ....then I guess it would be discoverable. And, if those doctors turn that stuff over, they'll be in violation of HIPAA and they'd be in trouble for releasing personal health information," at least insofar as the physicians only have a subpoena of PHI to work with. Right?
So one would be in trouble for releasing PHI to a subpoena alone, although not in trouble for rejecting it [because it is] insufficient to compel release of information. (Is this correct?)
But on the other hand, you would claim that a subpoena, after being rejected because it is insufficient, might then be resent accompanied by a later-filed court order [or other meeting of the requisite criteria], and if so, releasing PHI to this buttressed (?) subpoena would not place one in jeopardy of HIPAA as a HCP. Still correct?
[ February 16, 2004, 12:47 PM: Message edited by: ClaudiaTherese ]
Posted by Dagonee (Member # 5818) on :
If I understand your scenario correctly, then yes. A subpoena alone does not cover it. But a subpoena accompanied by an order of a court or administrative tribunal; proof of notice to the patient along with proof that the time for the patient to object has elapsed; or proof that the party requesting the information has received a qualified protective order from the court to which all parties of the dispute have agreed.
So a court order is not required, but some assurance that the patient's privacy rights have been accounted for is. Again, none of this speaks to the substantive question as to whether the discovering party is entitled to receive the information requested. HIPAA establishes procedural due process requirements designed to ensure the substantive due process requirements are adequately dealt with.
Check out 164.512(e) in the link I provided in my earlier post on the subject for more details on what's actually required.
Dagonee
Posted by ClaudiaTherese (Member # 923) on :
Thanks, Dagonee.
So if Ashcroft fails (additionally) to meet one of the requisite four criteria, then the physicians so subpoenaed have a legal obligation not to disclose the PHI, as per HIPAA. Right?
[This is why I was thinking that HIPAA regulations still are important to the discussion; namely, this is why people have still been discussing the burden of HIPAA on the physicians' actions. That, I think, is the answer to your question at the top of the page.
Until requisite conditions have been met, the physicians are still constrained by HIPAA not to release information.]
[ February 16, 2004, 01:16 PM: Message edited by: ClaudiaTherese ]
Posted by TomDavidson (Member # 124) on :
"If a state passes a law, and a doctor is operating outside the law, then there are other ways to get them besides requiring a review of every such case."
Which ways would these be? If a doctor is deciding to permit third-trimester abortions on a whim, how would you determine that without reviewing his record?
Posted by Dagonee (Member # 5818) on :
quote:So if Ashcroft fails (additionally) to meet one of the requisite four criteria...
This may just be me being too picky over language, but not quite. It's the soon-to-be-lawyer in me.
Ashcroft must meet one of these procedural safeguards before he the covered entity can legally release the data. Each of them provides an opportunity to have a judge rule on whether the government is entitled to the information, although this will not always happen if the subpoena is not contested in a timely fashion. In this sense, HIPAA must be accounted for before the government will get the records. This is referred to as procedural due process, and its goal is to ensure that an interested party will have a chance to be heard before her rights are irreperably infringed.
"Criteria" to me implies an idea of whether or not the government, as defendants in the suit, are entitled to the information. The only person who will make that decision is the judge, and HIPAA will not enter into his decision at all. Something like the four standards I listed on the previous page will be used. This is part of substantive due process, and its goal is that the right decision is reached once the question is heard.
So yes, HIPAA must be accounted for before turning over the records because one of its purposes is to ensure procedural due process, but no, HIPAA has no bearing on if the government is entitled to eventually see the records.
Dagonee PS, I've over-simplified the types of due process, but the categorization is accurate.
Posted by Suneun (Member # 3247) on :
Tom: My guess is only through a personal lawsuit.
While I don't know for a fact, I doubt the government reviews every single medical procedure to make sure they're not done on a whim. Or even re-assess the risk:benefit ratio for every procedure, which would logically be useful but is practically-speaking impossible.
Posted by TomDavidson (Member # 124) on :
In the case of third-trimester abortion, which is essentially murder, shouldn't an exception be made? Surely a routine review is made every time someone is euthanized or dies on an operating table, right?
Posted by rivka (Member # 4859) on :
Only if you agree that third-trimester abortion is murder.
Posted by TomDavidson (Member # 124) on :
As the logic behind permitting third-trimester abortion only in medically-necessary cases is that it arguably ends a life, surely this is equivalent to, say, choosing to pull the plug on a brain-dead patient who is only arguably "living." And yet I guarantee you that there are medical reviews done of such decisions.
Posted by rivka (Member # 4859) on :
*shrug* Since I don't consider them equivalent . . .
Posted by Dagonee (Member # 5818) on :
I don't consider them equivalent either, since a brain-dead patient taken off a respirator has more than likely had some chance to make their preferences in such a situation known, even if such chance existed only before the injury leading to brain death.
Dagonee
Posted by littlemissattitude (Member # 4514) on :
Aside from the specifics of the abortion issue that has been cited (which I don't know enough about to comment on), I have to say that I tend to agree with Bob in general here.
I, too, am old enough to remember the Nixon administration and Watergate. (And I'm almost old enough to remember McCarthyism.) I see too many similarities between the Nixon administration's shenannigans and some of the stuff going on in Bush II's administration.
They are way too fond of secrecy.
They are way too quick to label enemies.
They are way too fond of impinging on civil liberties.
In addition, the people surrounding Bush are way too convinced that Bush's election was a mandate to impose their own personal beliefs on the whole country. Considering how close the election was, I think they are out of line to consider it a mandate on anything.
Honestly, John Ashcroft (among others in the administration), scares the crap out of me.
Posted by sndrake (Member # 4941) on :
quote:As the logic behind permitting third-trimester abortion only in medically-necessary cases is that it arguably ends a life, surely this is equivalent to, say, choosing to pull the plug on a brain-dead patient who is only arguably "living." And yet I guarantee you that there are medical reviews done of such decisions.
Tom, I'm curious. What is the belief that "pulling the plug" decisions are reviewed based on? By whom? To what end? These situations occur in far more than just those labeled "brain dead" and I'm really at a loss as to what kind of medical reviews you could be referring to.
I've been reading through this thread and there seems to be a blurring of the lines between "partial birth abortion" and "third-trimester abortion." Congress outlawed the former, which refers to a specific procedure. It does not specifically outlaw late-term abortions carried out by other means.
Politics is always a dirty game - on both sides. Public opinion is pretty strongly in favor of outlawing the procedure labeled "partial birth." I suspect that part of the strategy in bringing the legal challenge was to force Ashcroft to subpoena records as a way of refocusing some public opinion - since public support for Ashcroft isn't as strong as the support for the legislation.
Just for the record - I'm not an Ashcroft fan. Not sure what to think about this particular case, but I am less sympathetic than most to claims that medicine should be left alone to police itself - self-policing hasn't worked real well with controlling the high rate of medical errors that plague our health system right now.
[ February 16, 2004, 08:18 PM: Message edited by: sndrake ]
Posted by Bob_Scopatz (Member # 1227) on :
quote:Which ways would these be? If a doctor is deciding to permit third-trimester abortions on a whim, how would you determine that without reviewing his record?
Suneun said most of what I wanted to reply here, and you have had a further discussion that expanded the issue. I just wanted to say that:
1) I would be in favor of reviewing a doctor's records as part of a medical review board (AMA, his hospital) for possible disciplinary procedures, loss of license or hospital privileges.
That's not the same as reviewing every 3rd trimester abortion. I'm not in favor of that because it would violate the intent of the Supreme Court decision to leave the medical decision in the hands of the medical practitioner.
2. I see the obvious possible loop-hole. A compliant doctor becomes "known" around town as someone who will perform a third trimester abortion and swear that it was a medical necessity. Frankly, I don't find this very likely because: a) The procedures aren't performed solo, so there are other "accomplices" to worry about if he's breaking the law. Someone will rat the doctor out eventually. b) If a doctor becomes known around town for being compliant, his peers will know about it. Eventually, he'll be scrutinized. c) If he somehow manages to keep the whole thing secret, he's not doing very many and so will be below the radar.
Anyway, I just think it's not a very likely scenario and thus any effort expended on MAKING SURE is really bordering on harrassment of the MD and the patient. It would have a chilling effect on proper medical treatment if the patient and the doctor know that the patient's medical file will be turned over to a review board. Will doctors become more and more reluctant to act swiftly to save a woman's life because they fear that a vague law and sentiment may spell the end of their career?
I don't like that alternative.
Posted by TomDavidson (Member # 124) on :
Bob, I think you miss another obvious loophole: what if not just a single doctor but an entire clinic is determined to perform these abortions on flimsy pretenses?
Posted by sndrake (Member # 4941) on :
I'm glad you brought that point up, Tom. There is at least one facility I know of that specializes in late-term abortions. Interestingly, the website doesn't use "health of the mother" as a rationale for what they do. It's all about "fetal anomalies."
The same site, in its description of procedures, refers to the abortion as a "delivery." Posted by Bob_Scopatz (Member # 1227) on :
I went looking for some statistics on "late term" abortion and couldn't really find a link, but I found a reference to a link...Not very encouraging.
But basically, they said that 90% of abortions take place in the first trimester and 10% in the second trimester, with a very small number (less than 1% obviously if the above are true) taking place in the third trimester. Something under 1000 per year. (300-700 range was cited)
Having known at least one woman who had to go full term with a stillborn baby, I wonder what percentage of the 700 babies aborted in the third trimester were already dead in the womb and counted. It sounded from the stats that some were.
Tom, I know you'll say "well if it's such a small number, let's review every case." But I still have a different take on it. There aren't that many because they are done in rare circumstances and for legitimate reasons.
sndrake, I believe found the site you were referring to (place in Kansas?). I think I understand your point, but without knowing what fetal anomalies they are referring to (up to and including actual dead fetuses), I'm not sure what to make of it.
Suffice it to say that I still don't think this is a job for government and that if state laws are being violated, I would expect a place that advertises on the Internet would be under a fair amount of scrutiny. If they're aborting viable fetuses after 24 weeks gestation without a compelling medical reason, what is stopping the AMA or the state from going after them?
It seems to me that the burden of proof is on the people who want to violate women's privacy to first show a compelling need for the state to do so.
Worrying about a potential scenario isn't going to cut it, I don't think. At least not with the Supreme Court.
Posted by sndrake (Member # 4941) on :
quote:sndrake, I believe found the site you were referring to (place in Kansas?). I think I understand your point, but without knowing what fetal anomalies they are referring to (up to and including actual dead fetuses), I'm not sure what to make of it.
Bob, it's been awhile since I've visited the site (yeah - you found the right one.). It used to have a breakdown of conditions, listing down syndrome, neural tube defect (spina bifida), and other conditions. That's gone. The point I was making - it's a side one in this thread - is the disturbing way (to me, anyway) the elimination of a late-stage fetus is packaged and presented as a "birth experience."
I don't think the site leaves any doubt about whether they're delivering "stillborns" or causing them:
quote:On the first day of the process, an injection of a medication is made into the baby to assure that it will be stillborn and will not experience any discomfort during the procedure.
That kind makes it clear, doesn't it? (If you really want to see some nauseating stuff, go to the grief sites. All ambiguity will be erased. I have one real horrid recollection of a poem written by someone "in the voice of" her aborted child who had Down syndrome thanking her for doing it.)
(insert vomit graemlin here)
You continue:
quote:Suffice it to say that I still don't think this is a job for government and that if state laws are being violated, I would expect a place that advertises on the Internet would be under a fair amount of scrutiny. If they're aborting viable fetuses after 24 weeks gestation without a compelling medical reason, what is stopping the AMA or the state from going after them?
Bob, what makes you think that any medical facility is under any intense scrutiny by anybody? The AMA doesn't go after anyone - as a matter of fact, that group does its best to oppose any outside oversight of the profession.
Remember the Singer thread and the story about the Baby Jane Doe in New Jersey? How a guardian ad litem determined there were descrepancies between the medical records and the sworn testimony of a physician? And when C. Everett Koop asked to review the records, he was attacked as a right-wing fanatic - when in fact the hospital may have had less than admirable reasons for keeping the records private.
We're on the same page in how we think about Ashcroft. I think you see some of the other players as having either nobler motives or having more power than they actually do.
Posted by Bob_Scopatz (Member # 1227) on :
sndrake, I really don't have any real working knowledge of the medical profession's ability to self-regulate. It just doesn't make much sense to me that a person or group can get away with breaking the law repeatedly in the manner proposed by Tom. I could be wrong, but it just doesn't pass the smell test for me.
Anyway, as I have nothing to go on but a gut feeling as opposed to actual facts, I'll defer to those with more information.
As for the injection to "ensure stillbirth," I read that and wondered if they do that whether or not the believe the fetus to already be dead. The use of the word "ensure" allows a broad connotation here. It might mean "make absolutely certain" or it might mean "we kill the fetus."
I will agree, though, that the website is not very plain and open its descriptions. And I also agree that it seems to indicate that 3rd trimester abortion due to problems with the fetus, and NOT the health of the mother is what they are doing.
I'm not sure of the laws in Kansas though. Since this was a state-by-state decision until recently, it'd be important to know whether Kansas has a law restricting late term abortion to ONLY cases in which the mother's health is in danger.
I had a cousin who, because of the state she lived in, was forced to go full term with a pregnancy in which the fetus was stillborn in the womb. While it didn't affect her physical health to do that, it sure was traumatic to go those last couple of months carrying a dead child inside. I don't know all the particulars of her situation, of course. Maybe it was safer for her to carry the fetus until her body rejected it (or whatever) naturally. But I know that if the extraction procedure is safe, I'd want the option available to women who chose NOT to carry a dead fetus.
Posted by Farmgirl (Member # 5567) on :
Okay -- I'm staying out of this....
but, yes -- Kansas is one of the focal points of the argument. Here in Wichita we have an abortion clinic run by Dr. George Tiller that performs late-term abortions.
It is a site of constant picketing and national media attention -- pro-life groups from all over the country come to Wichita just to protest Dr. George Tiller.
Not exactly something a city wants to be famous for.
As to Kansas law -- I quit following this issue -- but there has been several pieces of legislation proposed outlawing late-term abortion -- I don't know the current standing. It just seems to be an ongoing war that has gone on for several years now.
Wichita was a main site of one of Pro-Life "summer of mercy" campaigns.
Farmgirl
Posted by sndrake (Member # 4941) on :
Of course, Kansas also has Fred Phelps, also not something a state wants to be famous for.
I'm beginning to understand what is meant by "we're not in Kansas anymore." Posted by Farmgirl (Member # 5567) on :
ah yes! our infamous people make us famous.
<sigh>
FG
Posted by sndrake (Member # 4941) on :
quote:sndrake, I really don't have any real working knowledge of the medical profession's ability to self-regulate. It just doesn't make much sense to me that a person or group can get away with breaking the law repeatedly in the manner proposed by Tom. I could be wrong, but it just doesn't pass the smell test for me.
Bob, medical professionals breaking the law and getting away with it makes perfect sense to me. Let me give you an example: Last year, I presided over a retreat at the national conference of the American Association on Mental Retardation (I'm aware of the irony of me getting to talk to a bunch of clergy all day.).
One of the ministers works at an institution in your own state. He told the group there was a doctor at the local hospital that they kept their clients away from at all costs if they were hospitalized. He'd put "do not resuscitate" orders in their charts, refuse to order certain tests, etc.
It's highly unlikely that this physician's attitudes and resulting practices are a secret to the hospital staff. Doesn't mean that everyone agrees with what he does - but they tolerate it and respect his "right" as a professional to exercise "clinical judgment," even when it is motivated by contempt.
Due process considerations are not something hospitals or health care provider organizations want to spend much time on - they entail nonbillable hours.
Posted by Bob_Scopatz (Member # 1227) on :
Farmgirl -- it's Tiller's website that sndrake and I are discussing. He appears unique in his advertising of this service on the web. At least Google didn't find any others like his clinic.
sndrake -- So, as Tom suggested, do you think a post-abortion review for all 3rd trimester abortions is the answer?
I suppose with so few places performing 3rd trimester abortions, another possibility would be for the government to request an annual medical review to be sure no laws were broken.
But it seems kind of like a fishing expedition. Shouldn't there be probable cause?
Posted by sndrake (Member # 4941) on :
Bob,
the biggest objection I have to Tiller is the way in which abortion is portrayed as a "delivery" experience. I've already sounded off on my total lack of sympathy for those who want to justify an abortion as an act of compassion (saving the child from the horror of life with a disability) rather than sticking to the legal basis - which is about privacy and autonomy.
The only reason I jumped in at all was there seemed to be some assumptions about "watchdog" funcitions in the medical system that just don't exist. For example, the AMA is a professional organization that represents about half of the physicians in the US - not all physicians even belong to the organization.
The other thing was about the bill in question (which I think the current case revolves around). "Partial birth abortion" refers to a specific procedure. If there's any checking going on, it will be to find out if having to use that specific procedure was medically necessary.
Someone may have better access than I do, but it's my understanding that the "health of the mother" language in the court case that defined the exception in late-term pregnancy is very broad. Includes emotional and psychological health of the mother - as I've mentioned before, physicians are probably more sympathetic than the general public to signing off on the idea that parents will be "harmed" by the birth of a child with a disability. In any case, unless the physicians have been unbelievably sloppy, it's unlikely they can't meet a definition of "danger to the health" of the mother.
Don't have specific recommendations - I occasionally find it hard to resist pointing out that it's a highly political issue with a lot of crap being flung on BOTH sides.
I'm shocked by the experience you related - about a dead fetus being carried to term. But I am curious - if it was "dead," how did the pregnancy itself progress? Didn't growth and development stop?
[ February 17, 2004, 11:44 AM: Message edited by: sndrake ]
Posted by Bob_Scopatz (Member # 1227) on :
Yes, and I'm a little hazy on the details, but apparently she was told that it was safer to carry it full term and the body would just go through a delivery at the end of the process.
I don't get it. I didn't understand it then.
This was in NY State over 10 years ago, so I doubt the doctor was just making her suffer through a stillbirth because of a flawed abortion restriction. I mean, I have to at least believe that he would be looking out for the health of the mother 100% at the point when the fetus is discovered to have died.
It was a horrible experience for her, but whether anything could've been done differently, I can't say.
I am a bit concerned by the medical attitudes you have mentioned about fetal anomalies and disability in general. I'd be wary of anyone who decided they knew what anyone else's quality of life was, let alone whether it was acceptable to them. I mean, if it's the only life you have, maybe it's good enough for you?
On the other hand, I can pretty well understand the devastation that a parent might feel upon hearing that their child might be severely disabled. I'm not sure I could handle it, but it's another one of those situations where most of us wouldn't know until/unless we have to face it.
Posted by ClaudiaTherese (Member # 923) on :
Bob, the discrepancy between physicians' estimation of patients' quality of life and that of the patients with disabilities themselves is well-documented. More recently, the discrepancy between the patients' assessments of their own QOL and that of the general public (Whose quality of life? A commentary exploring discrepancies ...) has been documented. Most eye-opening for me was the marked discrepancy even between parents' (of children with brain tumors) and their children's assessments of the children's QOL (Health-related quality of life in childhood cancer: discrepancy in parent-child reports.).
Why is this important? Because it is the unquestioned and unexamined assumptions we have about those who are disabled which drive the options we even consider at the public table. Not even the loving parents of children adequately understand the experience enough to completely speak for them.
So, in the case of persons who are able to speak for themselves, why don't we ask them? And why don't we listen?
Sometimes it seems the bias is strong enough to lead some to say, in effect, "No, you are wrong -- your life is really much worse than you believe it is." Couple this with a power structure like medicine, where self-regulation is entrenced by language and access to information as much as by custom, and you have a doozy of a mess.
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And that's not good if you are really trying to convince people of the merit of your arguments, rather than the depth of your passion. I mean, the rest of us get it. You don't like Bush or Ashcroft or anyone in his administration. Fine. Next topic.![[Dont Know]](graemlins/dontknow.gif)
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That is absolutely priceless.![[Smile]](smile.gif)