I want my information back: evidentiary privilege following the partial birth abortion cases.

Abstract

In February 2004, privacy concerns captured the public's attention when the United States government, the defendant in a lawsuit challenging the constitutionality of the Partial-Birth Abortion Ban Act of 2003, sought to subpoena the medical records of patients receiving intact dilation and extraction (also known as "partial birth") abortions in six different hospitals and six Planned Parenthood centers across the country. Three different federal court cases explored the enforceability of the subpoenas. This Note explores the rationales used by the three courts in examining the privacy interests involved. It then suggests some possible solutions for systematically protecting medical information: a legal solution; a technological solution; and a combination of both. The legal solution involves creating a federal physician-patient privilege, similar to that enforced in many states and parallel to the federal psychotherapist-patient privilege. The technological solution requires the complicity of multiple jurisdictions to verify the necessity of revealing medical information. Taken together, these solutions can assist the government in protecting its citizens by imposing more checks on itself.