Some activists have dug through clinics' trash to find privacy violations by abortion providers — such as patient records tossed in dumpsters — and used them to file complaints with regulators.
The fight has landed in courts nationwide as the two sides tussle over which information about abortions should be public and which should remain confidential under privacy laws.
In St. Louis, for example, an Operation Rescue staff member is suing the city's fire department for 911 call logs and recordings from a Planned Parenthood clinic. The city says releasing the requested information would violate a federal patient privacy law.
In Louisiana, a critic of abortion sued the state last year to get data on abortions performed on minors, their ages and the ages of the listed biological fathers, as well as any complications that occurred. The state said the records were exempt from disclosure, and a judge agreed.
In Bloedow's case, a Washington court sided with the clinics and prohibited the release of the records he sought. In May, a state appeals court upheld that injunction.
"The public has no legitimate interest in the health care or pregnancy history of any individual woman or where any particular abortion was performed," the appeals court ruled.
A Tussle Over Privacy
At its core, the Supreme Court's 1973 decision in Roe v. Wade rested on the right to privacy. The court determined that this right — guaranteed under the due process clause of the 14th Amendment — extended to a woman's decision to have an abortion.
With the 1996 passage of the Health Insurance Portability and Accountability Act, known as HIPAA, additional federal privacy protections took hold for patients.
When Planned Parenthood officials were recently caught on video discussing the sale of donated fetal tissue, the organization invoked the potential violations of patient privacy to protest the surreptitious filming.
Still, the extent of the privacy guaranteed to those who seek abortions has been tested repeatedly.
In 2003, after Congress passed the Partial-Birth Abortion Ban, abortion providers sued to challenge its constitutionality. The Justice Department, as part of its defense of the law, sought patient records from a Chicago hospital, where a doctor was one of the plaintiffs' expert witnesses.
Though patients' names would have been redacted, a federal appeals court denied the request, citing privacy concerns.
"Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her," the court wrote. "She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound."
Around the same time, at least two state attorneys general, both abortion opponents, pressed for similar patient records. The attorney general of Kansas succeeded in part, while his counterpart in Indiana failed.
Digging For Dirt
More recently, it has been activists like Sullenger and Bloedow seeking information about abortion providers and their patients.
Coast to coast, they appear to be drawing from an unofficial playbook: Some wait outside clinics, tracking or taking photos of patients' and staffers' license plates and ambulances, if called.
They not only mine public records but also collect information leaked by sympathetic health care workers — for example, emergency-room doctors and ambulance drivers — who are required to keep patient information confidential under HIPAA. The law, however, doesn't apply to advocacy groups.
Sullenger acknowledges receiving private patient information and said it helps to confirm when patients have suffered complications or died. In most cases, she said, the group does not name patients or publish photographs of them.
(Sullenger served two years in federal prison for conspiring to bomb a California abortion clinic in the 1980s. Today, the Operation Rescue website says, she denounces violence.)
The leaked information is used by activists to bolster complaints they submit to health agencies against abortion providers, sometimes without patients' knowledge. Operation Rescue estimates that it has 100 complaints currently pending in different states.
Sullenger said it shouldn't be left solely to patients to bring such matters forward. "If someone else sees that there may be an issue, we have a public duty to report things like that."
Sometimes, complaints have brought violations to light.
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