This is an interesting Catch 22: some doctors are suing to overturn the recently passed partial-birth abortion ban, contending that the procedure is medically necessary; however, the doctors are objecting to the Justice Department's attempts to examine patients' medical records in order to establish the facts of the case. Pretty tricky! Medical records are normally immune to subpoenas, but without some information from the records it's impossible to know whether or not partial-birth abortion was ever medically necessary.

At stake are records documenting certain late-term abortions performed by doctors who have joined in a legal challenge of the disputed ban. President Bush signed the act into law last year.

Critics of the subpoenas accuse the Justice Department of trying to intimidate doctors and patients involved in the contested type of abortion. ...

Ashcroft said the Justice Department will accept the records in edited form, after deleting or masking any information that would identify a patient. Abortion-rights supporters nonetheless depicted the subpoenas as a dangerous intrusion into medical confidentiality. ...

Ashcroft, at a news conference in Washington, said the subpoenas were needed to enable the government to rebut these claims.

"The Congress has enacted a law with the president's signature that outlaws this terrible practice," Ashcroft said. "We sought from the judge authority to get medical records to find out whether indeed the allegation by the plaintiffs, that it's medically necessary, is really a fact."

It seems to me that what the plaintiffs are lacking is an actual woman with an actual medical condition that somehow requires a partial-birth abortion and is willing to waive the confidentiality of her medical records. I'm not a lawyer, but without such a patient I don't really see how the doctors have standing to sue any more than I myself would.

Further, how can they introduce evidence to support their claim that partial-birth abortion is necessary? Won't they need the medical records themselves? Or are we just supposed to take their word for it? After all, abortion is a thriving industry and it's reasonable to expect that the doctors who perform the procedure are eager to keep it as broadly legal as possible.



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