*1 MEMORIAL NORTHWESTERN
HOSPITAL, Plaintiff-
Appellee, ASHCROFT, Attorney General of
John States, Defendant-
the United
Appellant.
No. 04-1379. Appeals,
United States Court
Seventh Circuit. 23, 2004.
Argued March March 2004 *.
Decided
* opinion being typescript; printed This released in version will follow. *2 (dilation evacuation).
tact D & E” and We and briefing argument, accelerated and decision, in now accelerate our view of the pressures of time discussed later in the opinion. records, subpoenaed apparently
The
number,
sought
some 45 in
for use'in
trial in
forthcoming
the Southern Dis-
challenging
trict of New York of a suit
constitutionality of the Partial-Birth Abor-
108-105,
Ban
tion
Act of
Pub.L. No.
§
117 Stat.
U.S.C.
See
Ashcroft,
National Abortion Federation
(S.D.N.Y.
2004)
Mar.17,
& reasons for believing its Ford, 1984); Mission Roberts Shawnee sought by that the records *5 (8th Inc., 358, Cir.2003); 352 F.3d 361-62 value, probative would have little or no # 1. Miscellaneous Docket Matter v. Mis government’s response in opening- both its # 2, cellaneous Docket Matter 197 F.3d reply brief and its vague brief remained (8th Cir.1999); 922, 926-27 In re Sealed point being of evasive. (D.C.Cir,1998). Case, 670, 162 F.3d 673-74 argument pressed At the oral we However, support ruling expand of his lawyer government’s repeatedly and hard the federal common law of hoped for indications of what he to learn of embrace the medical records abortion records, hospital and drew a from patients, judge findings made that are (Contrary to our practice, blank. usual we arguably dis- highly germane to—indeed length argu- did not limit the of the oral 45(c) positive of—the Rule issue. He ment.) lawyer suggest The did if pointed “government out that seeks patients Hammond testified that with leu- possibility these records on the D X kemia are better off with the & something find therein which would D procedure than with the conventional & Dr. Hammond testimony affect the of ad E procedure but the medical records indi- is, versely, potential for its value patients that not all with credibility a cate abortion impeaching his as witness. abortions, argu undergo D & X government ignores What the its leukemia little, any, value probative ment is how impeach sug- would both Hammond and patient lies within these records.” He con gest only medically that D & X is not the probative trasted the dearth of value “with preg- safe abortion available potential loss of that would But nant women afflicted with leukemia. used in ensue were these medical records unlikely such information would be to be a a case in which the was not records, given found in Hammond’s his that “the party” and concluded balance strongly expressed preference using for severely resulting harms from disclosure D X method in the case of the & out-weighs to the the loss The fragile health. information would through non-disclosure.” likely in the much more to be found D E physicians perform records of who & findings solidly These were based. rather than D & X abortions on such urged proba- had both the lack of 928 records, however, sample or at least a gov- examine the
women. Those them, camera, parallel in the sub seek. ernment didn’t poena case of Planned Parenthood Feder for the first argument learned We America, Ashcroft, Inc. v. 2004 ation of deposed has been Hammond time that Dr. (N.D.Cal. Mar.5, 2004), to de 432222 WL questions litigation. York in the New likely they are to have termine whether illumi- deposition might in his and answers per any probative value. Time does of the medical records relevance nate the suggested mit. The has not testimony at the his impeachment reject remanded if we that the case be no has made trial. But the quashing the grounds district court’s part a deposition effort to make the subpoena. A remand would be tanta record. gov in the mooting appeal; mount to its judge has not Ordinarily when a district words, entirely ernment’s “a remand to his dis an issue committed addressed in pre frustrate the interest Government’s cretion, as the balance benefit timely a defense in the New York paring e.g., complying subpoena, with burden trial, on March 29.” begin which will We (7th McCann, 294 F.3d Peate v. any objection take this as waiver Cir.2002); Squibb v. E.R. & Deitchman ourselves, and weighing hardships our 563; Sons, Inc., 740 F.2d at Pami supra, Beer proceed weighing. we to the See Inc., da, Originals, 281 F.3d Inc. v. E.S. Co., Nuts, Inc. v. Clover Club Foods (8th Cir.2002), and the issue be (10th Cir.1986); n. 2 McCord F.2d disposition of the critical to the comes (D.C.Cir.1980); Bailey, v. 636 F.2d court must remand to appeal, appellate Caja Nacion cf. International Ins. Co. judge a chance to exercise his give the *6 y Seguro, De 293 F.3d al Ahorro Seafoods, Inc. v. Icicle Wor discretion. (7th Cir.2002); City Dillard v. Greens of 709, 106 S.Ct. thington, 475 U.S. (11th boro, 213 F.3d 1355-57 Cir. (1986). that We do follow L.Ed.2d 739 2000). however, course, here, for two reasons. judge, passages that in the The first is the think judge, Like the district we the opinion, struck the quoted we from his weighs quashing balance favor of words, “weighted the] balance—in other deny subpoena. The does not v. E.R. hardships.” Deitchman competing appropriate repre that the is an hospital Sons, Inc., 740 F.2d at supra, Squibb & privacy of interests of its sentative True, he did so in the course patients. DuPage Parkson v. Central from whether addressing a different issue Hospital, supra, 61 Ill.Dec. 45(c) be required that Rule argues N.E.2d at 142. But it that since but, realistically, the result of a quashed; seeking only a limited number of rec remand is foreordained. produced would be to it ords information that would enable that with the trial minus the
The second reason is identity begin on March of the to be deter in New York scheduled weeks, mined, prac- hardship there is no to either the only 29 and to last four patients compliance. be to moot or the tical effect of a remand would subpoena. argument is unrealistic and incom compliance with the the issue of unfortunate, that the adminis plete. and is not What is true is The time factor is (or would be anyone hardship compliance trative from the fault of the main But it or the else, permitted If time modest. is not appears). so far as that remand, sensitivity natural hardship. on remand judge a would possibility of their cumulative can make the of rec the disclosure people feel about brief, sensitivity ognition very high.” opening lies In medical records —the its when the rec amplified HIPAA —is throughout proceed behind the district court Congress of a has ords are ing, government expressly reserved if a crime. Even now declared to be date, at a right, later to seek the the government whose records the women identity patients whose records are means, they know what “redacted” seeks produced. argument, gov Pressed skeptical that redaction are bound be lawyer ernment’s abandoned the reserva from the identity conceal their world. will tion; we do not know what case in which medi hardly typical This is prevent govern reconsideration should the get cal drawn into lawsuit. Re ment, enforced, subpoena having been long- fierce emotions that the flecting the particular discover that medical records controversy morality over the running incomplete, it had obtained were combustible, made legality of abortion has opaque, ambiguous. Ban Act and Partial-Birth Abortion possibility Even there were no that a litigation challenging its constitutional patient’s identity might learned from a more so the rash of suits ity even —and record, country Depart in which the around the redacted medical there would be seeking the hos ment of Justice has been privacy. Imagine an invasion of if nude records of abortion pital woman, of a In- pictures uploaded to the —have publicity. enormous These generated though ternet without her consent without that, must know and doubtless women name, identifying her were downloaded hostility to abor they are also aware foreign country by people in a who will violence, erupted at times into tion has never meet her. She would still feel that entry into including criminal obstruction her had been invaded. The revela- climes, clinics, firebombing abortion tion of the intimate details contained physicians and the assassination of who a late-term inflict a record of abortion perform abortions. similar wound. will be afraid that Some of these women Hospital If Memorial can- Northwestern made a when their redacted records are *7 not shield the medical records of its abor- York, per in part of the trial record New judicial from in tion disclosure acquaintance, or skillful “Goo- sons their moreover, hospital will proceedings, in glers,” sifting the information contained patients, lose the confidence of its and concerning pa records each medical persons with sensitive medical conditions history, put tient’s medical and sex will may be inclined to turn elsewhere med- women, 45 together, two and two “out” the if govern- ical treatment. It is not as threats, humil thereby expose and them seeking ment medical records from were iation, obloquy. pointed and As the court every hospital performs and clinic that DuPage Hospi out in Parkson v. Central abortions, in which event women late-term tal, 651, 61 Ill.Dec. 435 N.E.2d at supra, against the disclosure wanting assurance 144, patients’ “whether the identities would have nowhere to of their records would remain confidential the exclusion of presence in turn. It is Dr. Hammond’s identifying is their names and numbers plaintiff expert the New York suit as and questionable patients’ at best. The admit government’s in sub- that has resulted discharge arguably and summaries contain Hospi- Memorial patients’ prior present poenaing of the Northwestern histories conditions, in medical information that tal.
930 hospital sharp artic- tissues with the knives used to dis- that has
The concerns
necessarily justify
body
withhold-
in the
ulated do not
member the fetus’s
convention-
govern-
from the
probative
causing
evidence
al D & E
procedure
hemor-
ment;
possibility
that medical
nor can
in
rhaging,
fragile
and that if the woman is
yield
patients would
records of abortion
avoiding
danger medically
is
constitutionality
to the
germane
evidence
indicated.
Abortion Ban Act be
the Partial-Birth
dispute
The
are for
merits
deter
gainsaid.
nearly
prede-
A
identical state
mination at
trial. The
issue
us is
Act was invalidated
cessor of the
whether, given
potential
is a
there
Carhart,
v.
Supreme
Stenberg
530
Court
hospital’s
psychological
pa
cost to the
2597,
914,
which the D & is repeated op- has had The essential indicated. difference be- portunities articulate a use for the rec- procedure tween that and the conventional seeks, ords it and it has failed to do D & procedure E is that latter at the prove so. What it would like to trial destroyed the fetus is while is York, Hammond, in New Dr. to refute womb, still entirely within the while in the *8 D E always adequate that & is alterna- destroyed procedure former it is after the tive, standpoint pregnant from the of a extremities, lower and sometimes the tor- health, D X procedure. woman’s to the & so, emerged have from the womb government But the to explain has failed It remains inside. head is because how the a D & X abortion record of would part outside the of the fetus is womb when this. it show And is not as if-Hammond destroyed is that the supporters fetus had relied records of of D & on the medical his procedure the Act describe the X expert “partial preparing testimony. as abortion. his birth” Dr. Hammond (Had so, he have practitioners they and other D & X done had to argue government because less of the fetus is in be disclosed to the under Fed. the womb 26(a)(2).) cutting have danger there is less of the woman’s R.Civ.P. He doesn’t
931
records,
1997);
State,
basing
testimony
Armstrong
his
v.
is
296 Mont.
(1999);
them,
appears
far
doesn’t even
common. might en procedures in Hammond’s this one which medical ords of us no case before comparison. govern to im- were used a useful patient records able experts’ (Langley Coughlin, doing anything v. like expert suggested hasn’t peach the ment 19, 1989), (S.D.N.Y. seeking June in individ 1989 436675 Its motives WL that either. helpful in a discus- attempt, rejected thoroughly medical records remain uals’ eases it is not sion), malpractice in though obscure. medical records redacted uncommon to use proce- D X question whether the & alleged negli- bearing on the defendant’s medically indicated will dure is ever in Terre Haute as impeachment, gence fact not legislative a matter of resolved as Trueblood, 600 Inc. v.
Regional Hospital, testimony taking trial-type requiring (Ind.1992), v. and Todd South 1358 N.E.2d (see Hope Ryan, supra, Clinic v. at F.R.D. System, 152 Jersey Hospital or will (dissenting opinion)), at F.3d (D.N.J.1993). 684-85 at pivot expert on the clash of witnesses sincerely interest Were trial, sug- perhaps, New York X abortions are ever in D & ed whether Stenberg, will be answered gested indicated, would have ex medically one approaches combination of these two some Me it to seek from Northwestern pected The medical records ascertaining facts. summarizing the statistics Hospital morial to the expert witnesses are irrelevant with late-term abor hospital’s experience and, we can deter- inquiry; first so far as undergo who Suppose tions. govern- to the having mine after listened are identical all materi D & X abortions length, at those records arguments ment’s health, number of weeks respects (age, al figure significantly the resolu- will not on) undergo who and so to those pregnant, experts’ disagreements tion of either. by the Partial- not forbidden procedures quashing The fact Ban Act. That would be Birth Abortion medical-records comports with Illinois’ D X procedure that the & potent evidence a final factor in favor of the privilege is ratio compelling does not have order’s action. As we held Me district sought, has been nale. No such evidence Hospital McHenry County v. morial Parenthood Feder in contrast to Planned (7th Shadur, Cir.1981), 1058, 1061 664 F.2d America, Ashcroft, supra, Inc. v. ation of recognize comity “impels federal courts (Mar. 2004). A variant Transcript this can be accom privileges state where approach would be to suggested cost to federal plished at no substantial sample of late-term abor obtain a random policy.” See procedural substantive and and then tion records from various sources Prop Parcel also United States One determine, analy through good statistical Street, at 31-33 York erty Located sis, characteristics whether (2d Cir.1991) curiam). (per F.2d a D & perform that lead Dr. Hammond to Patients, in Illi physicians, hospitals perform X a con physicians lead other strong policy priva rely nois on Illinois’ instead, E whether D & ventional They rely cannot cy of medical records. in the health conse there are differences not entitled to completely, for quences groups for these two women. being applied privilege’s count on the state differences, govern If there are no in a as this court. But case such federal might good defense of the ment have determine, which, so far as we can Gathering Act. records from Hammond’s interfere useful; would not applying if the patients alone will not be proceedings, significantly with federal (say, has other records from *10 promulgate regulations required apply protect pri- us not to comity has vacy of medical spe Opinion records. at 924 but to consider with privilege, Illinois ( n citing U.S.C. 1320d-2). Therefore, § arguments quashing for cial care the HIPPA regulations and the related deter- hardship subpoena on the basis relative mine privacy interests at stake. While 45(c). under Fed.R.Civ.P. detailed, tediously regulations these ap- AFFIRMED. pear thoroughly to have considered and privacy resolved the expressed concerns MANION, concurring part, dissenting in and the court. in part. 164.502, Section which sets forth the that HIPPA agree I with the court does general rules the use and disclosure of in adopt not state law a federal information,” “protected health provides court, question brought suit federal but entity may covered “[a] not use or rather Rule 501 of the Federal Rules of information, protected disclose health ex- evidentiary governs privi- Evidence cept permitted required by as or this sub- leges Opinion in such suits. applicable part or subpart part C of 160 of this I that it is not for us to agree also 164.502(a). subchapter.” 45 C.F.R. Be- physician- create a federal common law looking exceptions, fore to the various exists, privilege where none question initial is whether the information medical records are not the redacted sought in “protected this case is health However, Opinion at 926. privileged. regulations “pro- information.” The define reasons, disagree I with the several “individually tected health information” as enforcing court’s conclusion sub- identifiable health information.” C.F.R. poena creates an undue burden under Congress 160.103.Both and HHS define 45(c)(3)(A)(iv). passing In Fed.R.Civ.P. “individually health identifiable informa- HIPPA, Congress recognized in- tion” information that “is created or only “individually identifiable terest by a health provider, received care medical records” and not redacted medical plan, employer, or clearing- health care HIPPA preempts state law house; past, and relates to the present, or (re- regard. The “de-identification” physical future or mental health or condi- daction) identifying of all information from individual, provision tion of an pro- the medical records and the extensive individual, past, health care to an or the in place tective order also eliminates payment provi- or future for the present, privacy interest the records. Addition- cmd-(i) individual, sion of health care to an ally, only are the records in this case individual; (ii) with re- identifies relevant, acknowledges, as the court spect to which there is a reasonable basis they underly- highly probative can be used to to believe information Finally, contrary to ing issue. the court’s identify individual.” U.S.C. quashing conclusion that oc- 1320d(6); (emphasis 45 C.F.R. 160.103 curs “at no substantial cost to federal sub- added). policy,” suf- procedural stantive and both case, In this seeks greatly.
fer This court should enforce the agrees redacted medical records and subpoena. part I therefore concur in identifying information be removed part. dissent Northwestern makes the records before recognizes, As the court section rec- available for its review. Because the HIPPA, redacted, Congress identify authorized the Secre- ords will be will tary and Human to the individual. Nor is there reasonable of Health Services *11 (L) num- identifiers and serial can Vehicle the information be to believe basis numbers; bers, plate including license the individual. Section identify used 164.514(b) conclusion. the latter (M) confirms num- identifiers and serial Device 164.514(b)(2)(i) specific forth sets bers; Section removed, which, “de-identify,”
identifiers (N) Locators Universal Resource Web records: the health (URLs); (A) Names; (IP) (O) num- Protocol address Internet (B) smaller subdivisions geographic bers; All address, State, including street
than a (P) identifiers, fin- including Biometric code, and their zip county, precinct, city, prints; ger and voice ini- except for the geocodes, equivalent and (Q) photographic images face Full if, zipa code accord- digits of tial. three any comparable images; and data publicly available to the current (R) identifying num- Any unique other Bureau of the Census: from the characteristic, code, ber, except or (1) unit formed geographic (c) by paragraph of this sec- permitted codes with the same combining zip all tion; more than digits initial contains three 164.514(b)(2)®. § 45 C.F.R. 20,000 people; redacted, identifiers are Once these (2) digits zip of a initial three “individually longer records are no medical con- geographic units code for information.” 45 C.F.R. identifiable health 20,000 people is fewer taining 164.514(a).1 HIPPA and the im- § Under changed to 000. pro- there is no plementing regulations, (C) year) (except of dates All elements interest in non-identifiable tected to an individu- directly related for dates regulations Again, information. date, date, al, admission including birth conclusion. 45 C.F.R. confirm this death; date, and all discharge date 164.502(d)(2) provides: of dates and all elements ages over 89 in- Uses and disclosures of de-identified age, of such (including year) indicative Health information formation. may and elements except ages that such implementation meets standard single category into a aggregated be for de-identification under specifications older; age 90 or (b) 164.514(a) is considered not to (D) numbers; Telephone infor- individually identifiable health (E) numbers; Fax mation, i.e., require- de-identified. The (F) addresses; mail Electronic apply do not subpart ments of this (G) numbers; security Social that has been de-identified information (H) numbers; Medical record re- applicable in accordance with the (I) numbers; § 164.514 .... beneficiary quirements of plan Health (J) numbers; 164.502(d)(2) Account (emphasis add- 45 C.F.R. ed). (K) numbers; Certificate/license Hospital Chicago, object is located in to the re- cause the does not
1. The since could be identified these identifiers and in fact has moval of required to be from Illinois. Such an beyond be assumed to redaction consented given 164.514(b)(2)(i), that HIPPA assumption is unreasonable for instance Section disclosure, very still allows for that while agreeing Northwestern delete the treating de-identified. But in regula- the records as fact that the state of residence. The event, request government does not patient’s state tions allow the disclosure that, that information. disproves assertion be- Northwestern's *12 inquiry. re- That should end the But in- seeks government Because the stead the resurrects the individually privacy that are not court dacted records question through the “undue identifiable, pri- no burden” lan- under HIPPA there is 45(c)(3)(A)(iv). However, guage of Fed.R.Civ.P. in those records. vacy interest 45(c)(3)(A)(iv) Rule that a provides court “individually iden- if records were even the may quash modify subpoena or if it tifiable,” they subject still be to the would “subjects a person to undue burden.” use and general governing rules privacy 45(c)(3)(A)(iv). In Fed.R.Civ.P. the court’s health information protected disclosure of view, compliance with the above, § As noted the set forth in 164.502. (i.e. an impose “potential undue burden afforded that section
privacy protection
cost”)
psychological
on the women whose
exceptions. 45
provides several
C.F.R.
subpoenaed.
redacted records were
Such
164.502(a) (“A
entity
covered
exists, according
an undue
to
burden
the
protected
use or
health informa-
disclose
court,
potential
privacy
because the
loss
tion,
or
permitted
required
except
outweighs
the
probative
the
value of medi-
by subpart
part
C of
160 of
subpart
this
opinion
cal records.
at 927 (stating
See
added).
(emphasis
Of
subchapter.”)
this
finding
that the
court’s
Illinois district
164.512(e)(l)(i),
is 45 C.F.R.
relevance here
“potential
privacy
loss of
that would
protect-
the disclosure
which authorizes
ensue were
medical records
these
used
pursuant
a court
ed health information
party
a case which the
was not a
case,
government
order.
In this
ob-
outweighs
government
...
to the
the loss
authorizing
order
the disclo-
tained a court
based”).
through
“solidly
non-disclosure” is
records.
sure of the medical
Under
This
wrong
conclusion is
on several levels.
regulations,
negates any
an order
identifying
need
information.2
to redact
reiterate,
Initially,
HIPPA and
164.512(e)(l)(i). Yet,
as the
C.F.R.
regulations recognize
implementing
at oral
it
argument,
stressed
there is no
where the
privacy
loss of
medi-
for,
know,
has
nor desire to
no need
(or
cal records
are redacted
HIPPA
the patients.
identities
“de-identified”).
individual
it
jargon,
Nor is
reason-
Therefore,
only seeking
it is
the relevant
able
believe that
the unidentified 45
medical records. Such redacted
redacted
... who
“acquaintances
women have
will
no
protection
records are afforded
‘out’
put
together,
two and two
the 45
HIPPA, logically
women,
under
so
the re-
because
thereby expose
and
them to
identifiably private
threats,
have no
humiliation,
dacted records
obloquy.” Opin-
and
fact,
And
Illi-
expose.
although
information to
at
no
ion
929. In
there is
reason to
adopted
expansive
nois
view of
law has
believe that
the women themselves have
among
includes
medical
idea
are
redacted
that their records
recognizes,
sought by
as the court
Illinois
few
this
knew,4
case.3 But
no one
govern
question.
law
even
else
does
recognizes,
subpoena,
govern-
3. Even if
aware of the
2.As
the court also
some are
support
nothing
did not need a court order
this case
there
in the record
ment
protective
conclusion
women whose
“[t]he
it obtained a
secur-
because
order
ing
confidentiality
not want them collected and
these
do
redacted records.
Thus,
Department of Justice
Opinion
examined
and
at
com-
925.
presented
plied
in the New York trial.”
privacy protections
in evidence
established
with
Opinion
independent ways: by
927.
HIPPA in three
ob-
order; by
protec-
taining
obtaining
a court
order;
by seeking only
Notwithstanding
tive
rec-
the court's discussion of
redacted
HIPPA,
opinion
procedures
the notice
see
ords.
n
would,
already
ever
because
of the information
value of the evidence has
been
reasonably
identify
be used to
determined. District
Judge Casey,
that could
Court
redacted,
presiding
underlying
them will be
see 45 C.F.R. who is
over
164.514(b)(2)®,
case,
relevant,
none of the informa-
believes the
information is
so,
non-identify-
tion—not
the redacted
so much
that he has
that if
even
indicated
public,
ing
produced,
information —will ever be made
is not
he would consider lift-
(or
placed
stay
much
in court or
paraded
dismissing
less
the case
*13
the reach of “skillful
at
dismissing
the Internet within
least
Dr. Hammond from
case).
guar-
That
Googlers.” Opinion at 929.
is
the
This should also make clear
security
by
Judge Casey
anteed
the additional
of the
believes the evidence
protective
just
in this case in the
is not
“in
order entered
relevant
the attenuated
See,
sense,”
930,
e.g.,
opinion
of
York.
at
highly proba-
Southern District
New
,
Serv.,
Walker,
Reproductive
Inc. v.
439 tive to the difficult question he will face
1,
U.S. S.Ct. March 29. If deference (1978) chambers) (dissolv- J., (Brennan, owed, in- presiding is it is to the judge—the seeking ing stay judge abortion rec- who handled this pre-trial case on non-party patients arguments presented by ords of condition who knows the sides, patient par- names were redacted judge both and the will need who agreed protective ties to a order to all (non-privileged) relevant evidence ensure patients). privacy of available to allow him to make neces- sary findings factual to determine this The court’s erroneous conclusion that a difficult and contentious constitutional in the interest exists redacted case. unnecessary documents leads to the at- However, tempt probative to assess the value of while recognizing that “[t]he Notably, the district court dispute evidence. merits of the are for determination Koeoras) trial,” (Judge did not reach the undue at opinion at the court nonethe- compliance interjects theory burden of issue of Fed. less its own of the case 45(c)(3)(A)(iv). R.Civ.P. judgment probative In interest and its own time, hand, instance, the trial date at with value of the evidence. For bypassed accepted court a remand and court government states: “What the show, findings privi- the district court’s on the like to in refutation of Dr. Ham- lege applied impending testimony, issue and them to the undue mond’s that D is & question. always alternative, burden It then in E an adequate effect is from agrees standpoint pregnant with the district court there of a woman’s health, any probative is little if value in the re- D X procedure. & quested explain documents. Based on the com- failed to has how declaration, plaint, Dr. a D X Hammond’s record of abortion would show .& congressional it findings passed Opinion govern- this.” at But the when law, arguments and the made request ment’s document was not so struc- (both very and the tured: The did not ask for the privilege, probative limited since D X val- records the & abortions identified ue, below), Hammond, argued was the issue there is Dr. requested -but rather significant probative value. But that patients the redacted medical records of .decide, probative not for us to as the who had D E D abortions —both the & and require place, HIPPA does not notice where order C.F.R. . disclosure, 164.512(e)(l)(ii)(B), a court order authorizes 45 C.F.R. or where the records 164.512(e)(1), redacted, 164.502(d)(2). protective where there is a C.F.R. variety asserted It knows what could be found there— X reasons & —for that, justifying notwithstanding a partial-birth Dr. Hammond as evidence Dr. Ham- instance, Hammond For Dr. he strongly pre- abortion. mond’s declaration that performed abor- that he sometimes using stated X method fers D & of abortion protect for their health, tions women fragile practice, he have that “their fetuses after learned procedure. does use that Such evi- often quite anomalies that are severe.” highly probative, dence would be as the ¶ government request- Declaration 4. The implies by recognizing court itself records ed unlikely “would be to be in Ham- found during who an abortion their women had strongly mond’s view his (whether of pregnancy, 19th or 20th week preference using D X expressed the & E) D reason. partial-birth or & for that method.” 3; Request Interrogatories 1 At Document fact, In here relevance cannot be *14 at oral government explained at 7. As the made find- Congress explicit overstated: rele- argument, highly those records are partial-birth that a never ings abortion is necessity question to the of medical vant medically necessary protect to a women’s because, that if show Dr. Hammond Yet, health. Dr. Hammond claims Con- perform partial-birth not regularly did wrong. concisely lays is The court gress circumstances, those that abortions under Dr. In D X argument: out Hammond’s a & that Dr. Hammond would demonstrate abortion, (partial-birth) “the fetus is de- is partial-birth a abortion does believe extremities, stroyed after and the lower the health. necessary protect to women’s torso, emerged sometimes the have from course, could be variations Of there some only head in- the womb the remains of in the medical conditions the individual side,” this, to Dr. according Hammond Dr. why that Hammond used explain cases E procedure, is safer then the D & where method, Dr. re- a different but Hammond destroyed “the fetus is while it is still few, the any, circumstances members .... entirely the womb at Opinion within at surrounding Opinion abortions. the testify Dr. seeks to accord- 927. Hammond Thus, only way government 928. imperative ingly, and therefore is (and can Dr. Ham- judge) the trial assess government able to determine be partial-birth mond’s abor- contention veracity testimony. There is no his medically necessary protect are tions Dr. way by determining if better than medi- the women’s health is review the practice supports his Hammond’s actual condi- patients cal records of the with the question only testimony. is not a And this tions that Dr. Hammond referenced. rather concerns the impeachment, rejects theory, stating: this The court of this heart case. unlikely to “But such information would be Moreover, explained government as the be found Hammond’s records view during argument, oral the medical records strongly preference for us- expressed his its case its highly are relevant to because the D X method on & must to review Dr. Ham- experts be able fragile It would much more health. be whether, in files to their mond’s determine records, likely to found X was the expert opinion, a D & sought government, physicians Dr. Ham- appropriate procedure, most X D E rather D & perform who & than recognizes that mond claims. The court at Opinion women.” abortions exception to the need for a health “[t]he exactly But point: 927. Act Abortion Ban in the Partial-Birth know to be ban government does not what is pivot expert on the clash of witnesses found in Hammond’s medical records. will Dr. Opinion in the New York trial.” and service of a shall take rea- Yet, the court to recognize refuses steps imposing sonable to avoid undue bur- importance of the redacted records to the expense den or person subject on a to that case, government’s govern- even after the subpoena.”). succeeded, maybe And it explained ment experts need its even better than the had independent review the to form files ex- hoped: During argument, govern- oral pert opinions. ment learned for the first time that there only satisfy 45 records that its docu- highly
The medical records are also rele- request. ment Given that Dr. Hammond congressional finding, vant second stated in his performs, declaration that he namely, that a “partial-birth po- abortion supervises teaches or about 300 abortions ses serious risks to the health of a woman year, and that sought undergoing procedure.” 117 Stat. the records for a three-year two- to time 1201. Congress detailed numerous risks it frame, it probably surprised govern- posed by found partial-birth abortions. ment to learn there were Although point did not relevant apparently with the rest out during argument, oral Northwest- unrelated to the mother’s or fetus’s health. attorney ern’s alerted the court to the fact that the medical records will show whether event, any In the limited scope of the there were complications from the request, document government’s *15 abortion, and this highly proba- evidence is agreement to redact the records —some- tive to underlying the constitutional chal- thing required by not any- HIPPA —if lenge.5 thing, refutes questioning of the questions government’s
The court also whether motives or the im- the court’s government sincerely plication that government wants to determine the is on a & abortions are “whether D X fishing expedition. Opinion ever medi- at Al- 930. indicated,” cally government though because the contradictory, the court also summary did not seek government statistics of all chastises the cir- for not asking records, cumstances in which for enough such abortions implying that since performed. Opinion government at 929. But the as the did not ask for all rele- government documents, pointed out at oral vant argument, it documents did re- trying it was quest to limit the were burden on North- somehow less than relevant. Granted, confining western its document request many there were more relevant to those specific records that government situations where Dr. did not seek, Hammond partial claimed a the government birth abortion but should not be necessary was preserve to impugned prudently the mother’s limiting its docu- 45(c)(1) (“A health. See Fed.R.Civ.P. party request ment to those few medical rec- or attorney responsible for the issuance ords Dr. directly Hammond referenced.6 5. acknowledged Northwestern also charges another The court also with point relevancy during questioning: being question When probative evasive on the of the asked possibly whether the records could Opinion value of the medical documents. at demonstrate that the woman's government’s life—and not 927. It is true that the main risk, just her health —was at probative Northwestern's focus was not on the value of the attorney responded, "yes, help but that would surpris- medical but that is neither sides, nefarious, the other side.” This case is not given arguments about nor below request, but about the provid- document ruling. and the district court’s The district ing the district court with the evidence privilege it court in this case ruled that Illinois needs to question resolve the governed constitutional law question and not HIPPA. The it. before probative of the relevance and value of the Finally, contrary to the question to the court’s conclu- brings
That us back sion, quashing this case HIPPA, which, burden, along with undue at a does come cost “substantial to federal narrow the focus of the have should been and procedural policy.” substantive district court and before the question ruling may court’s well be the death knell 45, a court Rule court this case. Under claim, for Dr. Hammond’s as the district subpoena where it creates may quash a made clear it court the rec- believed no There is such burden undue burden. relevant it ords would consider HIPPA establishes this case because dismissing the if the case records were not no in redacted there is interest produced. Given that highly records are rele- records and those adequately cannot cross-examine Dr. Ham- challenge to the constitutional vant mond, the district court would be well only Ban Act. The Partial Birth Abortion rights its Dr. within bar Hammond’s to be identified court seems burden testimony, which will harm his Opinion “potential psychological cost.” case, plaintiffs’. also other assuming that the kind at 927. Even at a court’s decision also comes substantial contemplates, reliance Rule 45 “burden” adopted cost to the HIP- policy federal that as a effect creates on burden Lastly, significantly, PA. most at a cost of Congress’ none exists.7 comes to the truth privilege where changed appeal, argue question central ern on documents was not direction applied. This production whether law Illinois of the records constituted appropriately reversed the district court an undue because the were burden delving privilege issue relevant, court on the without government responded Thus, question it is not of relevance. into Appellant's length reply in its brief. See Re- government’s opening surprising that argument, ply Brief at 8—11. At oral relevancy did on the brief not focus also elaborated the relevance *16 Moreover, although documents. Northwest- documents, vague a not in or evasive argued that the were ern below documents way, by specifically demonstrating relevant, argu- did so in context of not it the medical records are both relevant and ing doctor-patient a law federal common highly probative underly- of the issues privilege. appeal, did On ing supra case. See at 8—10. relevancy argue need to address not to fact, issue, again ap- legal this court and in not claim is an 7. Northwestern does that it propriately rejected the idea of a federal subpoena comply with undue burden to addressing privilege without common law costly, because it is too difficult or time con- only question Relevance be- of relevance. produce suming to the redacted came relevant once court discounted may negatively impact reputation its that it import of de-identification and looked HIPPA past patients. The court with future 45(c)(3)(A)(iv). balancing ato test under Rule calling “potential agrees, cost in lost Again, government's opening brief that the goodwill,” opinion at because North- surpris- question did not focus on this is pa- western “will the confidence of its lose given Rule that Northwestern’s tients, persons with sensitive medical 45(c)(3)(A)(iv) argument below undue burden conditions be inclined turn elsewhere paragraphs, short was limited to three Opinion at 929. for medical treatment.” only tangential reference to relevance However, "cost,” authentic be- this is opening came sentence: its brief from this regulations apply federal cause the same subpoena an un- Attorney “The General’s regulations put equally hospitals. to all These acceptable privacy into the intrusion footing, negat- hospitals on the same thus Hospital’s promising significant patients, no hospi- ing any patient rejecting a basis for a the ascertainment of truth contribution to care a federal court orders the tal’s because Support NAF v. Memorandum in Ashcroft." pursuant to a production of redacted records Hospital’s Motion of Northwestern Memorial Quash regulatory Subpoena at 20. After Northwest- federal standard. partial-birth that a abortion is findings necessary protect
never woman’s risks, significant health poses
health and constitutionality
and to of such a law. reasons, foregoing
For and the I these produce enforce the
designated records. ELECTRIC, INC.,
LID
Plaintiff-Appellee,
INTERNATIONAL BROTHERHOOD WORKERS,
OF ELECTRICAL LO
CAL and Electrical Joint Arbitra Board, Defendants-Appellants.
tion 03-3767,
No. 03-3769. Appeals,
United States Court
Seventh Circuit.
Argued Feb. 2004. March
Decided