Spirited Reasoners can recall a time when labels like “Liberal” and “Conservative” meant something. Liberals tended to believe in the goodness of government. After all, our government reflects the majority of Americans, as in “We the People,” right? Conservatives, on the other hand, tended to believe in the evils of government. To quote Ronald Reagan, “Government is not the solution to our problem. Government is the problem.”
Fast forward to June 2022. The Supreme Court, by a majority of six so-called Conservatives to three so-called Liberals, has just proclaimed the end of Roe v. Wade, meaning that state governments across the nation are now free to intervene in what were previously thought to be the most private and personal decisions that could be made between a woman and her physician.
Ask any Conservative whether he or she believes in an American’s right to personal privacy against the invasion of government. Close to 100% will respond in an almost knee-jerk fashion. Of course they agree with personal privacy. Of course they oppose government invasion into an American citizen’s personal business.
Now ask them why they support their state government’s right to inquire into the personal nature of a woman’s visit to her physician. Ask them why it will now be okay for police to ask a patient and/or physician the following line of questions:
- Are you heading into that clinic to have an abortion? You’re not? Then, do you mind telling me exactly what type of procedure you plan to have? What? You choose not to answer? Then I’m afraid I have to place you under arrest for suspicion to solicit an abortion. (Now. Try proving your innocence without disclosing lots of personal medical information.)
- Excuse me, Doctor. Was that an abortion you just performed? It wasn’t? Then, do you mind telling me exactly what sort of procedure it was? (Now the physician now faces a dilemma: violate the patient’s federal HIPAA right to the personal privacy of her medical records or run the risk of being arrested by a zealous prosecutor.)
Sound like Hitler’s Germany or Stalin’s USSR? Yes it does. But how else are prosecutors going to conduct their anti-abortion investigations without violating physician-patient privileges in every case?
Not to mention the collateral damage these prosecutions will cause. For example, suppose a prosecutor suspects a particular physician of operating an illegal abortion clinic. How will the prosecutor establish such a case without looking at multiple patient records, including those whose visits had nothing to do with seeking an abortion? (Worried about a venereal disease? How will it feel to know that the employees in the prosecutors’ office now know all about your symptoms?)
Now that the U. S. Supreme Court has tipped its hand, we know the current “Conservative” movement is not about smaller government. It is about the establishment of certain fundamentalist ideologies. And these ideologies are about to be enforced against women and their doctors by the heavy hand of government.
Make no mistake about it. Women in those states supporting the Supreme Court’s recent decision have just lost their right to much more than an abortion. They have lost their right to the privacy surrounding their personal medical records.
We can expect a host of future legal battles pitting the rights of patients under federal HIPAA protection laws against the power of state prosecutors who are seeking criminal convictions for violation of state abortion laws. Given the text of the Justice Alito’s opinion, we can expect the states to win their fair share of these at the expense of personal privacy.