The University of Michigan Health Service claimed a moderate
victory Friday in its case against the U.S. Justice Department over
subpoenaed abortion records.

Judge Avery Cohn of the U.S. District Court in Detroit ordered
University obstetrician Timothy Johnson to turn over only some of
the records requested by the Justice Department, without
information that would identify patients.

Johnson, along with the National Abortion Federation and several
other obstetricians, is a co-plaintiff in a lawsuit to the 2003
Partial-Birth Abortion Ban, which was signed into law by President
Bush in November. The challenge was filed by the American Civil
Liberties Union.

The University was only partially successful in its efforts to
block the Justice Department subpoena. Its Feb. 23 motion aimed to
prevent the release of any of Johnson’s documents to the

But UMHS was awarded a moral victory in what it claimed was a
campaign to protect its patients’ privacy rights. Cohn
determined that the records would never be made available to the
public. “We believe these actions protect the privacy rights
of our patients,” stated a UMHS news release in response to
Cohn’s decision.

Cohn said he handed down the mixed bag because he was not
authorized to interfere with the legal proceedings in which Johnson
and the Justice Department are embroiled.

Cohn ordered Johnson to review University abortion records and
identify which ones can be used in the lawsuit. Johnson must
surrender these records — without patient identifiers —
by March 25 to Cohn, who will forward them to Judge Richard Casey
of the U.S. District Court in New York.

Casey will then decide whether the records are relevant to the
lawsuit, and whether government lawyers can use them in their
defense against Johnson’s challenge to the 2003 Partial-Birth
Abortion Ban, which was signed into law by President Bush in

The Justice Department also claimed Friday’s decision as a
win, saying the decision would further its efforts to defend
federal law while still protecting patients’ rights.

The Justice Department claimed it subpoenaed documentation of
Johnson’s abortion procedures last month in order to
determine Johnson’s competence and whether he had performed a
procedure often referred to as partial-birth abortion, known as
dilation and extraction within the medical community. In the
procedure, a fetus is aborted after being partially delivered from
the mother’s womb.

UMHS spokespersons have said that Johnson does not recall having
performed the procedure in the last three years.

This ruling ends the University’s involvement in the case.
UMHS is not a party to Johnson’s lawsuit, but felt compelled
to intervene, it said, when the Justice Department’s subpoena
threatened to compromise patients’ privacy. In defense of its
motion to block the subpoena, UMHS cited federal and state laws
that protect patients who are not named in a lawsuit.

The University’s motion was filed Feb. 23, after it
originally said it would comply with the subpoena. It remains
unclear why UMHS reversed its position on the subpoena but its
initial compliance was contingent upon the concealment of
information that would identify patients. The Justice Department
struck back with a March 3 motion claiming that the subpoena is
justified because Johnson is likely to argue that the procedure is
at times a medical necessity.

The 2003 law allows exceptions to the general ban when a
mother’s life is endangered, but not when a pregnancy poses a
serious, albeit non-life-threatening, health risk to the mother.
Opponents of the law hope to defeat it on the grounds that it lacks
sufficient exceptions for a mother’s health and

In response to the suit, the Justice Department has issued
similar subpoenas to hospitals at other universities, including
Northwestern, Cornell and Columbia Universities, both in New York.
A federal district judge in Illinois struck down the
government’s subpoena of abortion records from Northwestern
Memorial Hospital last month.

Obstetricians from these hospitals are suing to obtain a ruling
that would discard the 2003 law as unconstitutional.

The Partial-Birth Abortion Ban will not take effect until a
decision is rendered on legal challenges, scheduled to be heard by
Judge Casey on March 29.

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