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.

Public Access to Legal Documents

The NY Times reported yesterday that the SCOTUS rejected the Roman Catholic Diocese of Bridgeport’s request to delay the court-ordered release of thousands of legal documents from lawsuits filed against priests accused of sexually abusing children.

The diocese had argued in its petition that public release of the records would violate the constitutional privacy of defendants named in the suits and would also establish a dangerous precedent regarding the type of court records to which the public should have access.

In Rosado v. Bridgeport Roman Catholic Diocesan Corp. et al. the Supreme Court of Connecticut had discussed at length the issue of public access to court documents:

This [British] tradition of open trials made its way to colonialAmerica and evolved into a presumption of public access to court proceedings and records that remains a fundamental part of our judicial system today. The rationale underlying the presumption is straightforward: Public monitoring of the judicial process through open court proceedings and records enhances confidence in the judicial system by ensuring that justice is administered equitably and in accordance with established procedures.

…

This presumption of public access, however, is not absolute. When the public’s interest in judicial monitoring is outweighed by countervailing considerations, such as certain privacy
concerns, or if access is sought for ‘‘improper purposes’’ court documents or proceedings may be shielded from public view.

With respect to documents, the presumption of public access never has extended to every document generated in the course of litigation.

…

Parties are obligated to disclose a wide range of information in the course of discovery to support the disposition of their underlying claims.

But not all documents in the court’s possession are presumptively open. The presumption of public access applies only to ‘‘judicial’’ documents and records. … Therefore, when determining whether a document should be open to the public, the threshold
question under the common law is whether the document constitutes a ‘‘ ‘judicial document.’ ’’.

…

Courts have employed three general approaches to determine what constitutes a judicial document. The first approach construes judicial documents narrowly,limited to those documents relied upon to determine a litigant’s ‘‘substantive rights.’’

…

A second approach construes judicial documents more broadly. Under this approach, documents that are filed with the court that reasonably may be relied uponin support of any part of the court’s adjudicatory functionare judicial documents.

…

In what arguably could be deemed a third approach, courts have provided the definition of judicial documents in the broadest possible language, stating that the act of filing a document with the court in connection with a pending matter renders it a judicial document.

…

Regardless of approach, however, it is clear that the common-law presumption of public access to documents in the court’s possession is grounded in the public’s interest in monitoring the judicial process. Such access enhances public confidence that the judicial system is operating fairly, impartially and in accordance with established norms. This presumption is not absolute and applies only to ‘‘judicial documents’’ because
such documents serve as a proxy for public monitoring of court proceedings when the public cannot be present.

As to the issue of what documents are judicial documents, we agree generally that the mere filing of a paper or document with the court is insufficient to render that paper a
judicial document subject to the right of public access. . . . [T]he item filed must be relevant to the performance of the judicial function and useful in the judicial process in order for it to be designated a judicial document.

…

The question remains what constitutes a judicial document. For the reasons that follow, we conclude that Connecticut follows the broader approach under which any document filed that a court reasonably may rely on in support of its adjudicatory function is a judicial document.

….

We recognize that this broad definition of judicial documents creates the potential for parties to harass others by attaching private material with little to no relevance to the issues to underlying motions, thus rendering that material public. But we do not presume bad faith on the part of litigants or their attorneys.