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Wednesday, September 30, 2015

The Anti-Privacy Activities of Anti-Choice Activists

Undeterred by Planned Parenthood President Cecile Richards's recent smackdown of a disingenuous Representative Jason Chafetz (R-Utah), anti-abortion activists are using many tools in an expanding arsenal to attack a woman's right to choose. One of those weapons is invading women's privacy.

Many are familiar with the anti-choice movement's traditional tactics: lobbying state governments for tighter restrictions on women's health options, attacking doctors who help women terminate their pregnancies, and protesting in front of women's health clinics. The Supreme Court has made the protest option very easy: Last year, the Court struck down a Massachusetts law that created a buffer zone around abortion clinics to prevent protesters from harassing women seeking health options.

But the anti-choice movement is updating its tactics for the twenty-first century. Some extremists have gone as far as to hack into hospital databases to snoop on and release information about women seeking abortions. Many reasonable people would agree that hacking or exceeding access authorization is beyond the pale of appropriate conduct; there are statutes aimed at preventing and punishing such behavior.

A more subtle yet no less invasive strategy is also taking hold among anti-choice groups. For several years, anti-choice activists have sought to use state freedom of information laws (also known as "sunshine" or "public records" laws) to gather information about abortion clinics, doctors, and even patients. They then turn around and use that information to file complaints with regulatory authorities based on what they learn, or more accurately, based on what they think they see in the data.

As the Washington Post has reported, an activist in Washington State has used that state's public records law to collect information about the women who have terminated their pregnancies around the state, including, "age and race, where she lived, how long she had been pregnant and how past pregnancies had ended. He also wanted to know about any complications." Washington's health department, like those in other states, collected this and other vital information statistics.

The danger does not lie in the mere collection of these data. Rather, it lies in a misuse of sunshine laws for an anti-choice crusade that results in invading the privacy of vulnerable women. And this isn't idle speculation.

Consider the story of Dr. Shelly Sella, a former colleague of the slain Dr. George Tiller and one of the few doctors in the country who openly perform late trimester pregnancy termination procedures. Although eventually exonerated of any wrongdoing, Dr. Sella became the subject of an investigation after a group of anti-choice activists used New Mexico's open records law to obtain transcripts of a 911 call about complications following an abortion performed by Dr. Sella. The 26-year-old women at the center of the story was not part of the complaint, but her "medical treatment, mental state, her religion, where she lived and family status became public record in transcripts from a three-day hearing where a board prosecutor accused Sella of gross negligence."

These tactics are aimed at discouraging women from seeking pregnancy termination options for fear that intimate details--of their medical histories, marital status, and sexual background, just to name a few--will become matters of public record at hearings or trials. The weapon isn't a megaphone or a firebomb, but its subtlety belies its sharpness. There are few events that make someone feel more victimized, more alone, more vulnerable than an invasion of privacy. Sticks and stones can bounce off a veneer, but an invasion of privacy is an attach on a person's core, on the trust he or she has in others and in the value he or she sees inside. So it is no wonder that crusaders who think women who exercise their rights and the doctors that help them are "criminals" would seek out the sharpest knife in the drawer.

Sunshine laws should arguably not even apply in these contexts. The activists' goals are clearly aimed at the women seeking abortions and their doctors; the connection to open government is an incidental and coincidental nexus providing ex post legitimacy to their tactics. 

In the Washington State example, information will not be released under the state's public records law if doing so would invade individual privacy: "disclosure of information about the person: (1) Would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public." It is hard to imagine that releasing personal information about a woman seeking an abortion would not be offensive to a reasonable person. But we should not allow the right's crusade against choice to make what should be a private discussion between a patient and a doctor into a public spectacle. Nor can Planned Parenthood be in the business of monitoring every court in every jurisdiction in every state through some information war room to contest release of data every time an anti-choice activist files a request. Therefore, perhaps one option is to add explicit statements that exempt such data from release.

Posted by Ari Ezra Waldman on September 30, 2015 at 03:38 PM | Permalink

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