Operation Rescue and other anti-abortion groups have taken to dumpster-diving behind abortion clinics, ProPublica reports, trying to find patient records in order to prove that the clinics are violating their privacy. This has been going on since at least 2008, with anti-abortion groups claiming that the clinics are violating HIPAA laws and the clinics accusing them of trespassing and theft.
The National Abortion Federation told ProPublica’s Charles Ornstein that they believe the anti-abortion groups are trespassing in order to get access to clinic trash, but that the activity isn’t taken seriously by law enforcement as a criminal violation against both the clinics and the patients. (Full disclosure: Ornstein was a professor of mine in graduate school.)
Operation Rescue’s senior policy adviser Cheryl Sullenger, meanwhile, accused abortion clinics of dumping documents carelessly: “Everybody acts like the abortion clinics are this bastion of protection for women’s privacy, and they’re like the chief offenders of just dumping this stuff willy-nilly. It’s so hypocritical.”
“Hypocritical” might also be a word one could use for wading ankle-deep in someone else’s garbage — trying your hardest to violate medical patients’ privacy — in order to prove privacy is being violated.
The story also doesn’t touch very deeply on how dumpster-diving ties in with Operation Rescue’s long history of physically threatening abortion providers. Ornstein does mention that Sullenger was convicted of conspiring to blow up a California abortion clinic in 1988 and served time in prison. She has said in interviews that she subsequently embraced non-violent methods. Scott Roeder, the man who killed Dr. George Tiller, had contact information for Sullenger in his phone. She later admitted to helping the killer track the dates and times that Tiller was due to appear in court on charges that he violated state laws in providing late-term abortions. Tiller was acquitted, then assassinated by Roeder three months later.
In some cases, however, Ornstein points out that the dumpster-dives have led to a few clinics being prosecuted for actual violations of the law, including, in a handful of cases, serious ones. The Office for Civil Rights within the Department of Health and Human Services cited three Michigan abortion clinics in 2010 for HIPAA violations:
The office cited three Michigan clinics in 2010 after abortion opponents said they found records including intake forms, drivers’ licenses and recovery room reports, as well as fetal remains, in dumpster bins. One clinic blamed a janitorial service, but all subsequently took steps to comply with the law. Separately, Michigan prosecutors charged that one clinic with illegally disposing of patient records. Its corporate owner pleaded guilty to one count, which was dismissed six months later.
And last year, in Oklahoma City, where Operation Rescue said an “anonymous source” had given them medical records thrown away in non-secure garbage bins:
The group said the records had been discarded before the seven-year period required by law had expired, and that “sensitive documents were placed in the common trash where any person or animal poking through garbage could easily find and uncover such personal and confidential paperwork.”
The Oklahoma Attorney General’s office investigated and found wrongdoing that went well beyond recordkeeping. The doctor was charged with felonies for providing abortion drugs to undercover agents who were not pregnant. He also agreed to stop practicing medicine.
The doctor’s attorney, Mack Martin, said his client was never charged with any privacy violations but has pleaded not guilty to the other charges against him. “Their allegation was that by not having shred the evidence [records], he violated HIPAA,” Martin said. “I guess maybe from the strictest technicality that may be true, but normal citizens don’t dumpster dive.”
The National Abortion Federation says real patient privacy violations are few and far between. They and other groups told Ornstein that digging through clinic trash has also been used to make unfounded complaints to state regulatory agencies, which in several cases has led to an actual privacy violation for an abortion patient:
But those who support abortion rights say the ultimate aim of these activists is to reduce abortions by intimidating women and their doctors — using the loss of privacy as a weapon. They say their opponents are amassing a wealth of details that could be used to identify patients — turning women, and their doctors, into pariahs or even targets. In a New Mexico case, a woman’s initials and where she lived became public as part of an investigation triggered by a complaint from activists.
A 2012 case in Kansas offered some clues as to how the anti-abortion dumpster divers operate. A clinic attorney told USA Today that witnesses saw a pickup truck pull up to a locked dumpster, which stored patient records that were about to be shredded.
Sullenger of Operation Rescue told Ornstein that while dumpster-diving may be “sketchy,” she maintains that it’s fully legal: “Is it a little bit on the sketchy side? Yeah, maybe. Who wants to dig through trash? But if we can find evidence of wrongdoing, we’ll dig through trash all day long.”
Ornstein also reports that anti-abortion activists are sitting outside clinics tracking the license plate numbers of patients and staff, which, again, is a practice that’s gone on for a very long time. Several anti-abortion websites feature photos of the cars of abortion clinic staff, their license plates clearly visible, alongside their full names, photos and other identifying information.
Right Wing Watch points out that much of these practices are outlined in an anti-abortion “playbook” published by Operation Rescue last year and co-authored by Sullenger and Troy Newman, the group’s president.
This story has been updated to reflect that Ornstein mentioned Sullenger’s conviction in his first piece on Operation Rescue.
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Sullenger in 2014, smiling as she watches a Kansas State Board of Healings Arts meeting on the case of Dr. Ann Kristin Neuhaus in Topeka, Kansas. Sullenger filed a complaint that eventually led the board to revoke Neuhaus’ medical license over referrals of young patients for late-term abortions. A judge overturned the revocation. Image via AP.