Tracking Abortions in Oklahoma

H.B. 1595 was signed into law by the governor of Oklahoma on May 21, 2009, and will become effective on November 1, 2009. It prohibits abortions based only on the sex of the child, and it also creates the Statistical Reporting of Abortion Act, which will be codified as Section 1-738a of Title 63 of the Oklahoma Statutes.

The Oklahoma State Department of Health must make available on its ‘stable’ Internet website, by March 1, 2011, an Individual Abortion Form, that physicians will have to use in order to submit electronically the reports required by the Statistical Reporting of Abortion Act.

The ‘Stable Internet website’ is defined by the law as a website that, to the extent reasonably practicable, is safeguarded from having its content altered other than by the State Department of Health.

To the extent reasonably practicable? I could not find a definition of that rather vague notion in the Act. But no need to worry, because The Department shall take all necessary precautions to ensure the security of the electronically submitted reports so that the data they include is able to be accessed only by specially authorized departmental personnel during and following the process of transmission.

So necessary precautions must be taken, but only to an extent that is reasonably practicable? Who will represent this standard of reason? Patients concerned about their privacy, or the government concerned about keeping costs down, or with a particular political agenda?

Pursuant to a subsection of the law that shall become operative no later of April 1, 2011, or thirty calendar days following the date on which the State Department of Health will post the Individual Abortion Form on its web site:

Any physician performing abortions shall fully complete and submit, electronically, an Individual Abortion Form to the State Department of Health by the last business day of the calendar month following the month in which the physician performs an abortion, for
each abortion the physician performs.

The Department shall post the required Individual Abortion Form on its stable Internet website. Nothing in the Individual Abortion Form shall contain the name, address, or information specifically identifying any patient.

This is interesting. The Oklahoma Legislature seems to believe that not providing the name or the address of the women who received an abortion in the state is sufficient in ensuring that their anonymity is protected. Identity is, however, a much more complex concept, and one’s name and address are only two of its multiple components. The government understands this, since the American passport also contains our DOB and photograph. The French passport adds to this information the fingerprints of the bearer.

What defines our identity? I like what Stan Karas wrote in an article : “… modernity has transformed individuals from complete subjects to a collection of subjectivities. [Stan Karas: Privacy, Identity, Databases, 52 Am. U.L. Rev. 393 428 (2002)]

Yet a collection of subjectivities is what the law requires the physicians to provide on the web form, even though the law states that nothing in the form shall contain any information specifically identifying any patient.

What is the information that the physician will have to provide on the Individual Abortion Form? Here are the first eight items:

1. Date of abortion

2. County in which abortion performed

3. Age of mother

4. Marital status of mother
(married, divorced, separated, widowed, or never married)

5. Race of mother

6. Years of education of mother
(specify highest year completed)

7. State or foreign country of residence of mother

8. Total number of previous pregnancies of the mother

This information may not be enough to identify a woman living in New York county (Manhattan), but could be enough to identify a woman living in a sparsely populated county, especially if the woman’s race (I would rather use the term ethnic background though), or educational level, are not common in the area. In other words, if you are, say, a Native-American with a PhD, obtained at the age of 22, an achievement featured in the local paper, your name and address can be deducted easily from these facts, so the form may indeed contain information specifically identifying the patient.