Does your district attorney have access to your medical records?

Does your district attorney have access to your medical records?
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The latest attempts to criminalize health care for women will demand that every Alabaman woman must share their medical records with their local district attorney. Sound fishy? While the new Human Life Protection Act signed into law in Alabama this month purportedly targets the abortion providers rather than the women seeking health care, it could send the local prosecutors directly into their medical care and medical records.

The Alabama law specifies that “no woman upon whom an abortion is performed or attempted to be performed shall be criminally or civilly liable.” But because it defines “human being” as including an “unborn child in utero at any stage of development regardless of viability,” any record of a pregnancy test, consultation note, or inquiry about a prenatal appointment could be evidence of a crime if the pregnancy does not produce a delivery. The district attorney, who prosecutes drunken driving cases and burglaries, will have access to your medical records if there is any possibility that you are, could have been, or used to be pregnant.

If this explanation sounds alarmist, consider the 2001 Supreme Court case of Crystal Ferguson versus City of Charleston. At the height of concern over “crack babies,” a mythical phenomenon that did not exist, unlike the well documented fetal alcohol syndrome, the Medical University of South Carolina developed a protocol at its Charleston public hospital for drug testing pregnant women without their consent and giving positive test results to law enforcement officials, who would then arrest any of these patients for “simple possession” if the pregnancy was less than 27 weeks and “delivery to a person under age 18” if it was more than 27 weeks.

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This was not a hasty decision of a rogue district. The prosecutor met with hospital staff, police officers, the Charleston County Substance Abuse Commission, as well as the South Carolina Department of Social Services. Their protocol of a dozen pages for “management of drug abuse during pregnancy” began with a drug test initiated by health care professionals whose results were forwarded to the cops. Secret tests were given when hospital staff decided the patient met any of the nine criteria for drug use, including “incomplete” or “late” prenatal care.

The Supreme Court ultimately concluded the nonconsensual testing was an unconstitutional warrantless search, whose beneficent goals to protect the fetus did not exempt it from the Fourth Amendment as a clear “special needs” search, since the need it most directly advanced was prosecution.

Medical records will be the first things that a prosecutor suspecting an illegal abortion will subpoena. These records are not protected under the federal Health Insurance Portability and Accountability Act, which has a law enforcement exception to privacy protection. If medical personnel suspect a woman may seek an abortion, notifying the authorities will not pose liability for the woman under this new Alabama law but will only enable protection of the unborn human being. Do we need a protocol for “management of abortion seeking behavior during pregnancy” as well?

It is true that prosecutors routinely subpoena medical records in criminal investigations, and victims routinely consent to their disclosure because of their interest in the cases. Prosecutors are not usually subpoenaing medical records from those whose medical care they are trying to restrict let alone punish. To the many cruel consequences of criminalizing basic health services for women in the new Alabama statute, add injecting law enforcement and local prosecutors into their medical care and records.

David Siegel is a professor who teaches criminal law and director of the Center for Law and Social Responsibility at New England Law in Boston.