Redaction Is Not the Answer: The Need to Keep Third Party Minors' Abortion Clinic Medical Records Safe from Discovery

• Author: Maggie Abbulone
• Position: Capital University Law School, J.D. candidate, May 2011
• Pages: 161-191

REDACTION IS NOT THE ANSWER: THE NEED TO KEEP

THIRD PARTY MINORS’ ABORTION CLINIC MEDICAL

RECORDS SAFE FROM DISCOVERY

MAGGIE ABBULONE

I. INTRODUCTION

Swear to God you won‘t tell. This is a phrase used f requently by

teens.1 If the listener refuses to ―swear to God,‖ many times the teen

would rather swallow their secret than take the chance of others finding

out.2 This is especially true when dealing with private decisions

surrounding pregnancy or abortion.3 That is why it is essential teens

receive great assurances that their privacy will be protected when seeking

an abortion.

It may seem that confidentiality for teens who have had an abortion is

obviously important and universally provided. Unfortunately, state actors

across America have taken strong actions in the past couple of years that

have threatened minors‘ privacy in their reproductive decisions.4 These

actions include attempting to obtain teen patient medical records in

lawsuits involving abortion clinics.5 This comment explores the effect that

allowing discovery of medical records would have on a teen‘s trust in

confidentiality. Also, it discusses the states‘ interest in these minor patient

records and determines when such discovery should not be allowed.

This comment begins by looking at a series of cases that took place

right after the passage of the Partial Birth Abortion Act of 2003. In these

cases, U.S. Attorney General Ashcroft attempted to obtain unredacted

medical records of adult women who had partial birth abortions in an effort

to discredit the physician who performed the abortions. Next, attention

turns to minors‘ privacy interest in their sexual decisions and various state

Copyright © 2011, Maggie Abbulone.

* Capital University Law School, J.D. candidate, May 2011. I would like to thank my

parents and husband for their unremitting love and support. Also, thank you to Professor

Dan Kobil for his assistance and guidance on this topic. Lastly, thank you to the Law

Review Editors for their direction while writing this comment.

1 See, e.g., SABRINA WEILL, THE REAL TRUTH ABOUT TEENS AND SEX 11 (2005).

2 See infra notes 232–40 and accompanying text.

3 See infra notes 232–40 and accompanying text.

4 See infra Part II.

5 See Planned Parenthood of Ind. v. Carter, 854 N.E.2d 853, 856 (Ind. Ct. App. 2006);

Alpha Med. Clinic v. Anderson, 128 P.3d 364, 369 (Kan. 2006).

162 CAPITAL UNIVERSITY LAW REVIEW [39:161

actors‘ attempts to invade that privacy. The issue becomes complicated

when dealing with minors because they do not have the full constitutional

right to privacy enjoyed by adults, but confidentiality is incredibly

important to teens. Thus, this comment shows how courts have addressed

this issue and then leads into a recent Ohio case dealing with privacy for

minors‘ abortion clinic medical records.

After reviewing recent court actions, this comment explores minors‘

constitutional right to privacy in their decisions involving procreation and

the reason why the medical records reflecting those decisions need

adequate protection. Next, this comment discusses various studies that

show how essential privacy and confidentiality are to teens and just how

damaging the threat of a confidentiality violation can be to a teen who is

deciding whether to access medical care. Because of the importance teens

place on confidentiality, this comment argues that allowing for redaction of

medical records will not provide adequate protection and that such an

allowance will place a large burden on a teen‘s reproductive decisions. In

the end, this comment shows that in private litigation involving abortion

clinics, it is essential medical records of third party minors receive

protection from discovery attempts.

II. BACKGROUND

The issue of privacy in abortion clinic records came to the forefront in

2003. The National Abortion Federation filed suit against the United

States Attorney General challenging the constitutionality of the Partial

Birth Abortion Act of 2003,6 which imposed ―criminal and civil sanctions

on physicians who performed certain abortion procedures.‖7 Many of the

plaintiffs were physicians who performed abortion procedures that would

become illegal under the new law.8 During discovery, Attorney General

Ashcroft issued a number of subpoenas across the country attempting to

obtain medical records of women who had abortions performed by the

plaintiff physicians.9

One of the plaintiffs in the suit, Dr. Hammond, stated during discovery

that he performed the kind of procedure that the new law would ban.10

6 18 U.S.C. § 1531 (2006).

7 Nat‘l Abortion Fed‘n v. Ashcroft, No. 03 Civ. 8695, 2004 U.S. Dist. LEXIS 4530, at

*2 (S.D.N.Y. Mar. 19, 2004).

8 Id. at *2–3.

9 Id. at *2.

10 Nat‘l Abortion Fed‘n v. Ashcroft, No. 04 C 55, 2004 WL 292079, at *1 (N.D. Ill.

Feb. 6, 2004).