On March 26, 2004, the U.S. Court of Appeals for the Seventh Circuit ruled in Northwestern Memorial Hospital v. Ashcroft that a subpoena seeking abortion records was properly quashed (i.e., nullified). In the underlying case, plaintiffs have challenged the constitutionality of the Partial-Birth Abortion Ban Act of 2003, which bans late term abortions in which the fetus is not destroyed until after the lower extremities have emerged from the womb. The government subpoenaed the abortion records (with patients' identities redacted) of a plaintiff/doctor/expert witness who will testify that partial-birth abortions are medically necessary. The government sought the records to impeach the expert witness. In its ruling, the Seventh Circuit: concluded that HIPAA does not create an evidentiary privilege; declined to create a new federal common law privilege; held that third parties' privacy concerns are an "undue burden" that can quash a subpoena; and held that a state privilege should impel a federal court to consider the "undue burden" of a subpoena with special care. To read the full analysis, go to
http://www.velaw.com/pdf/resources/HH040504.pdf.
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