Conservative radio talk-show host Rush Limbaugh's battle over improper seizure of his medical records by police was the focus of the Missoulian's Jan. 26 editorial. In the editorial, we pondered, "If police circumvent privacy laws and procedures in a case involving a well-known and politically empowered personality, what makes you think they'll show you any more consideration if they decide there might be something worth checking in your medical file?"
The answer to what we thought was a rhetorical question wasn't long in coming.
The records in question involve cases of so-called partial-birth abortion. The practice used to be legal. Congress passed a law banning it. Planned Parenthood and groups of doctors have filed lawsuits challenging that ban as unconstitutional. The Justice Department has subpoenaed medical records from hospitals and Planned Parenthood clinics where partial-birth abortions had been performed in the past because it thinks the records might be useful in defending against those lawsuits. Similarly, in Limbaugh's case, police seized his medical records because they hoped they'd be useful in prosecuting him for charges related to abuse of prescription painkillers.
Some people think Limbaugh is a loudmouth hoist on his own petard of law-and-order commentary. And partial-birth abortion is a practice that deeply disturbs many people. But let's not fall into situational ethics. The simple fact is that you're entitled to a reasonable expectation of privacy regarding your medical records. They shouldn't be at the government's disposal.
The Justice Department effectively acknowledges the violation of privacy inherent in its request for records in the abortion issue. Those records become public if the government gets its way. Justice Department lawyers say privacy concerns will be adequately addressed by blacking out the names in the records. Sure. At least in theory. But the reality is that once multiple people have access to information, there is every likelihood that it will be leaked to the public.
In cases of crime, the government can indeed obtain medical records so long as (unlike in Limbaugh's case) it respects a suspect's constitutional right to due process. But no judge should permit an invasion of medical record privacy for people who have never been accused of wrongdoing because the attorney general thinks doing so may help the government fend off lawsuits alleging other forms of unconstitutional invasion of privacy.
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