Kansas Abortion Rules Spur Fear Over Patient Privacy

TOPEKA, Kan. – Abortion-rights supporters worried Tuesday that regulations Kansas is trying to enact would give the state health department unfettered access to patient medical records and suggested it could endanger the privacy of women who have terminated pregnancies.

Supporters of the new rules called such concerns unfounded because state law contains protections against patient information becoming public. One anti-abortion leader said the abortion providers and their allies are trying to stir up privacy fears to avoid scrutiny of their operations.

A new Kansas law requiring abortion providers to obtain a special annual license -- and the accompanying health department regulations -- are part of a wave of new restrictions enacted across the country. Abortion opponents capitalized on the election of Republican governors or large GOP legislative majorities; Kansas has both. The state also previously drew national attention for a fierce debate over medical records and abortion patients' privacy when an attorney general investigated clinics.

The new regulations took effect Friday, but a federal judge blocked their enforcement until a lawsuit involving two of the state's three abortion providers is resolved. The rules specify what drugs and equipment they must stock and set standards for room sizes and temperatures, among other things. The judge also blocked the new licensing law.

One regulation says "all records shall be available at the facility for inspection" by the secretary of health and environment or his staff. Abortion-rights advocates said giving such access allows health department officials to review highly personal information, and they don't trust Republican Gov. Sam Brownback's administration because he is a strong opponent of abortion.

"It's totally unjustified and an invasion of patient privacy," said Bonnie Scott Jones, an attorney for the New York-based Center for Reproductive Rights, which is representing two doctors in the federal lawsuit.

The new licensing law declares information in medical records must be kept confidential, and another statute makes it a misdemeanor for health department employees to disclose such data publicly. Department spokeswoman Miranda Myrick noted that federal law also applies.

She added, "When surveyors are inspecting facilities, the medical records do not leave the facilities."

Abortion opponents say access to medical records is necessary if the department is to provide proper oversight.

South Carolina's rules for abortion providers say health department inspectors "shall have access to all properties and areas, objects, records and reports." In Texas, a health department surveyor is "entitled to access all books, records or other documents." Arizona's rules give abortion providers two hours to produce a record if it's at the clinic.

"That struck me as a pretty standard provision, that regulatory agencies would have access to records," said Kansas House Judiciary Committee Chairman Lance Kinzer, an Olathe Republican who opposes abortion.

Mary Kay Culp, executive director of Kansans for Life, said the privacy issue is "the only tool" abortion-rights supporters have in trying to prevent scrutiny of providers.

"If health and law enforcement inspectors aren't allowed access to abortion records, how exactly is legal abortion any different from illegal abortion?" she said.

During the most recent legislative session, Kansas also tightened restrictions on late-term abortions, told doctors they need to get written consent from parents before performing an abortion on a minor and limited private health insurance coverage of abortions.

The budget also contains a provision diverting federal family planning dollars for non-abortion services from Planned Parenthood. The organization has sued, but the state has already committed to spending the dollars elsewhere, a filing by attorneys for the state showed Tuesday.

Supporters of the Kansas licensing law and health department rules argue that they'll protect patients from substandard care. The federal judge who blocked them questioned whether the state yet has any evidence the rules are "rationally related" to that goal.

Julie Burkhart, founder of the political action committee Trust Women, said recent events in Kansas give abortion-rights supporters pause.

"There's a great concern," said Burkhart, who formerly worked for Dr. George Tiller of Wichita, who was acquitted of charges that he violated the state's abortion laws just weeks before he was murdered in 2009 by a man professing strong anti-abortion views. "Based on history, there has not been a lot of integrity put forth regarding patients' private medical records."

Tiller's clinic and a Planned Parenthood clinic in the Kansas City suburb of Overland Park had legal battles over medical records with then-Attorney General Phill Kline, who opposed abortion, after he began investigating the clinics in 2003. Through judicial subpoenas, Kline obtained access to information in patient records.

The Planned Parenthood clinic still faces a criminal case filed by Kline accusing it of performing illegal abortions and falsifying records, which it strongly disputes. Kline is entangled in a professional ethics proceeding, partly over how records were handled, that he and his supporters say is driven by politics.

MSNBC host Rachel Maddow cited the earlier Kansas controversy last week in raising questions about the access to records granted under the new rules.

Culp and other abortion opponents note that during the debates surrounding Kline and his investigations, no names of abortion patients became public, and he received access only to redacted records.

But a handful of details from a few patients' cases were discussed publicly, including on Fox News host Bill O'Reilly's show. Jones said government employees disclose private information -- by mistake or design -- "all the time."