The Talking Dog

In something that Margaret Atwood has long portended, an American prosecutor, Kansas State Attorney General Phill Kline has subpoenaed records pertaining to late term abortions performed in his state. I suspected there wouldn't be all that many abortion providers in Kansas, let alone late term abortions, and the number seems to be something like... two.
This mirrors prior unsuccessful efforts by John Ashcroft to gather evidence to enforce an unconstitutional federal ban on late term abortions; Kline purports to be "investigating child rapes". No point in speculating as to Kline's motives; the Republican prosecutor has been most outspoken in his opposition to all legal abortion (and wants to impose stoning for it, along with stoning for adultery, and stoning for... well, lots of things.)

I have long advocated Democrats calling for the repeal of Roe v. Wade precisely so that states like Kansas COULD ban abortion (and thereby leave people like me who live in New York ALONE and not in fear that Roe would be reversed and then abortion re-federalized in an attempt to ban it; more importantly, maybe Democrats could stop getting bitten on the ass by this issue which should NEVER have been a federal matter at all).

That said, however, I have a fun theory that the Kansas attorney general is not merely violating Roe in seeking to chill women's efforts to seek a constitutionally protected right... I think he has quite possibly violated another federal law, for which he himself may potentially be prosecuted, particularly given what he is trying to do: invade the privacy of female patients.

I'm talking, of course, about the somewhat enigmatic HIPAA law... (the Health Insurance Portabiltiy and Accountability Act of 1996) which provides, in relevant part:

"WRONGFUL DISCLOSURE OF INDIVIDUALLY IDENTIFIABLE HEALTH INFORMATION

"SEC. 1177. (a) OFFENSE.--A person who knowingly and in violation of this part-

"(1) uses or causes to be used a unique health identifier;

"(2) obtains individually identifiable health information relating to an individual; or

"(3) discloses individually identifiable health information to another person,

shall be punished as provided in subsection (b).

"(b) PENALTIES.--A person described in subsection (a) shall--

"(1) be fined not more than $50,000, imprisoned not more than 1 year, or both;

"(2) if the offense is committed under false pretenses, be fined not more than $100,000, imprisoned not more than 5 years, or both; and

"(3) if the offense is committed with intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm, be fined not more than $250,000, imprisoned not more than 10 years, or both.

It strikes me that, although Kline is mouthing the "intention to prevent child abuse" rationale in a brazen attempt to fall under an exemption set out in section 1178 for "public health" purposes such as "investigating child abuse", that provision only involves the issue of whether state law is superceded. I suspect that Kline does not have an independent state law basis for what he's doing. (In fact, I suspect that Kansas is like most states and physicians are already under an obligation to report incidents of suspected child abuse.) Hence, my theory is that unless he has the young ladies' consent to raid their medical files, Mr. Kline is probably violating their privacy rights, and, if so, he should be facing up to ten years in prison and a $250,000 fine, under federal law for maliciously violating HIPAA and the privacy of medical patients. Of course, that's just a theory. (Like evolution.) He might be acting in the good faith dscharge of his prosecutorial duties (just as I might be signed as a left-handed middle relief pitcher by the New York Mets this season).

What are the odds that a President who won an election on a theme of gay-bashing and pandering to those who want abortion banned altogether would have his torture-happy Attorney General and crony prosecute? Non-existent. But perhaps there is some potential private right of action for those affected... certainly, there is a federal law basis under HIPAA to stop Mr. Kline's fishing expedition right where it is, without the prickly issues of Roe itself.

From the state that already leads the nation in other areas of enlightenment, we give you this.

A recent book title asked What's the Matter with Kansas? All I have to say is... yeah... what the f*** IS wrong with that place?

Comments

Okay, I read your blog.

Now go fuck off.

That frightening picture of the fang-ed canine is a kind of yang counter-puntal to what must be your real essence, based on the shyte you post. All yap and no fang, and a lot of projection, and envy (not merely of the monetary kind.)

I came to you, pardon what would (ab)normally be an enticement for you, because a sensible blogger has you on his / her referral list.

Perhaps he / she assumed the fange-ed creature was indicative?

Oh well, we are all failed creatures, and we all make mistakes.

Posted by Red Lief at February 27, 2005 12:47 AM

Jeez, their RL... perhaps you have us confused with another blogger whose nom-de-blog involves a rottweiler...

It has happened before... I understand it could be most disconcerting to those expecting to see little green footballs to come over here and instead find our little red book.

Still and all, it sure looks to me like somebody could use a hug.

Posted by the talking dog at February 27, 2005 4:27 PM

Hi Dawg,

I am quite sure that the HIPPA legislation was not intended to apply to a law enforcement grand jury investigation where records are obtained via subpoena.

If late term abortions are illegal in Kansas or in any state, I pose to you the question of how a law enforcement agency can enforce the law without the records?

Posted by jswiener at February 28, 2005 12:01 AM

JSW--
Exactly. A state law enforcement agency cannot (under this statute, as written anyway) subpoena these records without the patient's consent. Of course, if the prosecutor maintains total confidentiality of the patients' records himself, he'd probably ok under HIPAA... that's nto the point, though... is it?

Given that the purpose of this investigation is to harass, or even prosecute the patients themselves, using their confidential data, you can see the problem, and why that SHOULD BE the law.

As to the actual answer, given that there is a catchall in section 1178 for "other purposes", I would guess that the Sec. of HHS probably issued regulations that permit this sort of thing, probably expressly.

But HIPAA has been problematic in other areas, such as medical research and public health... really harmful in these areas, actually. To use an otherwise problematic statute to protect people from a state prosecutor hellbent on persecuting them for political purposes... that would be a hidden benefit... as your comment implies, though, I suspect there are easy explanations for how a state prosecutor gets around this, especially to do the bidding of the relgious right.

The irony is that no one wants to see viable late-term fetuses being aborted (excepting maybe John Kerry, and only if you take anything he says literally-- which HE doesn't). And yet, by conducting such a blunderbuss investigation in this way, I'm not sure the Kansas prosecutor can actually investigate that issue (and frankly, I don't think HE cares much either.)

Posted by the talking dog at February 28, 2005 11:39 AM

OT, but...
Republic of Gilead...indeed. Just finished "Wizard and Glass" starting "Wolves of the Calla".

Enjoying it immensely. Great reference, Phil Kline = John Farson? a Good Man after all...[/snark off]

Where's Roland or even Oy when you need them?

Posted by Jo Fish at February 28, 2005 4:30 PM

TD, Gonzalez has issued a memo reconciling your paradox. In fact, I have seen the memo, a multi-purpose one, and it goes like this:

Dear (Political-type person):

You have inquired whether the proposed (action) is violative of Constitutional rights. Be rest assured it is not for reasons of (National Security, Crime Prevention or some other reason).

Hope that clears up, and by the way, you need spellcheck.

Posted by Enabler at February 28, 2005 10:48 PM