Protecting Your Privates

President George W. Bush has been skipping around the country accusing Sen. John Kerry of "flip-flops." Well ... I gotchyer flip-flop right here. It's a doozy. And it threatens not only the privacy but also, in a quite direct way, the privates of the citizens of these United States.

In 2000, Bush ran on a platform that loudly supported medical privacy. He has said, "I believe privacy is a fundamental right." In April 2001, he promised to protect, he said, "the right of every American to have confidence that his or her personal medical records would remain private." Tommy G. Thompson, secretary of health and human services, chimed in: "We are giving patients peace of mind in knowing that their medical records are confidential and their privacy is not vulnerable to intrusion."

That promise has been broken. On March 6, The New York Times ran a polite headline on page eight: "Administration Sets Forth a Limited View on Privacy." Decide for yourself the extent of the flip-flop -- and whether the story didn't call for starker headlines on page one.

The Bush-Ashcroft Justice Department is attempting to force hospitals and clinics to turn over medical records on thousands of abortions. More than 2,700 files have been demanded in the San Francisco area alone. Files are also being sought from Kansas, Missouri, Pennsylvania, and Washington, D.C., as well as the cities of L.A., Philly, Pittsburgh, New York City and still counting. Ashcroft claims these records will help him defend a new law prohibiting partial-birth abortions. Doctors are challenging the law on the ground that it prevents certain abortions even when they're medically necessary.

Fundamentally, Bush's claim is that the government can instruct doctors on the needs and treatment of their patients. One function of law is to set precedents. If the government has the right to dictate one aspect of medicine, and if that right is unchallenged and/or upheld, then a precedent has been set for government to dictate other medical priorities. There are honorable arguments for and against abortion, but it is difficult to imagine an honorable argument for the government's right to dictate specific medical care. If government can dictate something so intimate and personal then what, according to that precedent, can it not dictate?

Flip-flopping drastically on his 2001 promise, Bush's Justice Department now states that patients "no longer possess a reasonable expectation that their histories will remain completely confidential," adding that federal law "does not recognize a physician-patient privilege." Do not overlook a point that should be as alarming to conservatives as to progressives: These sweeping statements do not single out abortion cases; they cover all medical practice. The government is claiming the right to pry into any medical records -- psychiatric, for instance, or records of substance-abuse treatment, AIDS, rape, incest, anything at all. Your privates, in short.

That is a radical reversal of two centuries of American legal practice. It is also a reversal and denial of what every American expects and assumes when in need of a doctor's help. When is anyone more vulnerable than when they need a doctor? The Bush administration is claiming the right to intrude upon that vulnerability.

This point was not lost on federal District Judge Phyllis J. Hamilton, who denied the Justice Department access to abortion records from San Francisco area hospitals and Planned Parenthood clinics. The Times reported her stand that "forcing the providers to turn over records would undermine the privacy rights of patients and could dissuade some from seeking treatment." Judge Hamilton said, "There is no question that the patient is entitled to privacy and protection. Women are entitled to not have the government looking at their records."