Activists Pursue Private Abortion Details Using Public Records Laws
This story was co-published with the Washington Post.
A few years back, Jonathan Bloedow filed a series of requests under Washington state’s Public Records Act asking for details on pregnancies terminated at abortion clinics around the state.
For every abortion, he wanted information on the woman’s age and race, where she lived, how long she had been pregnant and how past pregnancies had ended. He also wanted to know about any complications, but he didn’t ask for names. This is all information that Washington’s health department, as those in other states, collects to track vital statistics.
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Bloedow, 43, isn’t a public health researcher, a traditional journalist or a clinic owner. He’s an anti-abortion activist who had previously sued Planned Parenthood, accusing the group of overcharging the government for contraception.
“There are stories in the data that bring home the reality of what these people do,” Bloedow, a software engineer, said in an email. “Any good investigator knows that when you’re dealing with hard-core criminals, if you ‘keep crawling through their garbage’ some evidence of criminality and corruption will turn up.”
The health department had already given him data for one provider, he said, and was on the verge of turning over more information when Planned Parenthood and other clinics sued, arguing that releasing the records would violate health department rules and privacy laws.
The legal skirmish, and others like it nationwide, reveal a quiet evolution in the nation’s abortion battle. Increasingly, abortion opponents are pursuing personal and medical information on women undergoing abortions and the doctors who perform them. They often file complaints with authorities based on what they learn.
Abortion opponents insist their tactics are generally not aimed at identifying women who have abortions but to uncover incidents involving patients who may have been harmed by poor care or underage girls who may have been sexually abused. They say they are trying to prevent situations such as the one involving Philadelphia abortion doctor Kermit Gosnell, who was convicted in 2013 of murdering three babies after botched abortions and of involuntary manslaughter in the death of a woman.
“This is about saving the lives of women,” said Cheryl Sullenger, senior policy adviser for the anti-abortion group Operation Rescue, which is based in Wichita, Kansas. “A lot of people don’t understand that. It’s a systemic problem within the abortion industry today for abortion providers to cut corners on patient care.”
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.
“I don’t think there’s any margin for error here,” said Laura Einstein, chief legal counsel of Planned Parenthood of the Great Northwest and the Hawaiian Islands, which challenged Bloedow’s request. “These women came to a private health center to have a private health procedure, and that’s just not anybody’s business.”
In recent years, abortion opponents have become experts at accessing public records such as recordings of 911 calls, autopsy reports and documents from state health departments and medical boards, then publishing the information on their websites.
Some activists have dug through clinics’ trash to find privacy violations by abortion providers — such as patient records tossed in dumpsters — and used them to file complaints with regulators.
The fight has landed in courts nationwide as the two sides tussle over which information about abortions should be public and which should remain confidential under privacy laws.
In St. Louis, for example, an Operation Rescue staff member is suing the city’s fire department for 911 call logs and recordings from a Planned Parenthood clinic. The city says releasing the requested information would violate a federal patient privacy law.
In Louisiana, a critic of abortion sued the state last year to get data on abortions performed on minors, their ages and the ages of the listed biological fathers, as well as any complications that occurred. The state said the records were exempt from disclosure, and a judge agreed.
In Bloedow’s case, a Washington court sided with the clinics and prohibited the release of the records he sought. In May, a state appeals court upheld that injunction.
“The public has no legitimate interest in the health care or pregnancy history of any individual woman or where any particular abortion was performed,” the appeals court ruled.
A Tussle Over Privacy
At its core, the Supreme Court’s 1973 decision in Roe v. Wade rested on the right to privacy. The court determined that this right — guaranteed under the due process clause of the 14th Amendment — extended to a woman’s decision to have an abortion.
With the 1996 passage of the Health Insurance Portability and Accountability Act, known as HIPAA, additional federal privacy protections took hold for patients.
When Planned Parenthood officials were recently caught on video discussing the sale of donated fetal tissue, the organization invoked the potential violations of patient privacy to protest the surreptitious filming.
Still, the extent of the privacy guaranteed to those who seek abortions has been tested repeatedly.
In 2003, after Congress passed the Partial-Birth Abortion Ban, abortion providers sued to challenge its constitutionality. The Justice Department, as part of its defense of the law, sought patient records from a Chicago hospital, where a doctor was one of the plaintiffs’ expert witnesses.
Though patients’ names would have been redacted, a federal appeals court denied the request, citing privacy concerns.
“Imagine if nude pictures of a woman, uploaded to the Internet without her consent though without identifying her by name, were downloaded in a foreign country by people who will never meet her,” the court wrote. “She would still feel that her privacy had been invaded. The revelation of the intimate details contained in the record of a late-term abortion may inflict a similar wound.”
Around the same time, at least two state attorneys general, both abortion opponents, pressed for similar patient records. The attorney general of Kansas succeeded in part, while his counterpart in Indiana failed.
Digging For Dirt
More recently, it has been activists like Sullenger and Bloedow seeking information about abortion providers and their patients.
Coast to coast, they appear to be drawing from an unofficial playbook: Some wait outside clinics, tracking or taking photos of patients’ and staffers’ license plates and ambulances, if called.
They not only mine public records but also collect information leaked by sympathetic health care workers — for example, emergency-room doctors and ambulance drivers — who are required to keep patient information confidential under HIPAA. The law, however, doesn’t apply to advocacy groups.
Sullenger acknowledges receiving private patient information and said it helps to confirm when patients have suffered complications or died. In most cases, she said, the group does not name patients or publish photographs of them.
(Sullenger served two years in federal prison for conspiring to bomb a California abortion clinic in the 1980s. Today, the Operation Rescue website says, she denounces violence.)
The leaked information is used by activists to bolster complaints they submit to health agencies against abortion providers, sometimes without patients’ knowledge. Operation Rescue estimates that it has 100 complaints currently pending in different states.
Sullenger said it shouldn’t be left solely to patients to bring such matters forward. “If someone else sees that there may be an issue, we have a public duty to report things like that.”
Sometimes, complaints have brought violations to light.
In Indiana, the group Right to Life obtained thousands of pregnancy termination reports from the state health department. The records are nearly identical to those requested by Bloedow in Washington, but Indiana granted the request, redacting only a few fields.
After analyzing the data, the group filed a litany of complaints with the state, alleging that doctors were violating abortion record-keeping laws, including failure to report abortions involving minors in a timely manner. Four physicians now face disciplinary proceedings.
Such cases can be pursued without violating the privacy of patients, said Cathie Humbarger, vice president of policy enforcement for Indiana Right to Life. “We’re not aware of one situation where someone identified a patient by looking at a termination of pregnancy report after it was released by the state,” Humbarger said in an email sent through a spokeswoman.
One Indiana doctor, who has acknowledged making an “honest mistake” involving paperwork, faces a misdemeanor criminal charge.
His attorneys have argued that he did not knowingly violate the law and unsuccessfully sought to have the medical board case dismissed before a hearing.
But there have been other instances in which anti-abortion groups have filed unfounded complaints, said Janet Crepps, a senior counsel for the Center for Reproductive Rights. The resulting investigations caused additional details about the patients to be made public, she said.
Operation Rescue and another group filed complaints with New Mexico’s medical board against a doctor who works at an Albuquerque clinic after a patient experienced a complication and was taken to a hospital, and they obtained a recording of the 911 call.
Though the board ultimately exonerated the doctor, many details about the patient — her age and her mental state, in addition to her initials and where she lived — came out in a transcript of a hearing.
“The woman clearly did not want her privacy violated,” said Vicki Saporta, chief executive of the National Abortion Federation, a professional association for abortion providers. “She didn’t want to talk to anybody.”
After a Death, All Bets Are Off
Anti-abortion groups typically tread carefully when it comes to living patients.
Operation Rescue’s website in March published a photograph of a woman being wheeled out of a St. Louis clinic on a stretcher but put a black bar over her eyes to obscure her identity.
When a patient dies, however, it can be a different story.
In 2013, a different abortion opponent wrote on her blog that an “impeccable informant” told her the identity of a kindergarten teacher who had died after a late-term abortion at a clinic in Germantown, Maryland. Groups including Operation Rescue quickly got the word out, using the woman’s name and photos from social-media sites.
The doctor who performed the abortion, LeRoy Carhart, has been a target for protesters because he does late-term abortions that most other practitioners won’t. Though abortion opponents blame him for the woman’s death, the Maryland medical board found no deficiencies in his care for her.
Saporta said the woman’s family did not authorize the release of her identity.
Sullenger said she sympathized with the family’s loss but not its demand for privacy. “Look, once a person dies, they don’t have any privacy anymore,” she said. “I think they should have been more concerned about it happening to another person.”
Contacted recently, the woman’s mother declined to comment.
‘All They Cared About Was Judging Me’
For some patients, the grief they already feel with the end of a pregnancy is compounded by the loss of privacy.
Alicia, who spoke on the condition that only her first name be used, had an abortion in November 2013 after her OB/GYN told her and her husband that the fetus had a severe form of spina bifida, a debilitating birth defect.
During the procedure, she began bleeding heavily from a tear in her uterus. The clinic, located in Bellevue, south of Omaha, summoned an ambulance, which took Alicia to the hospital.
Someone protesting outside the clinic took a photo of the ambulance, and Operation Rescue’s website reported the incident, though it did not know Alicia’s identity.
Within weeks, the Nebraska health department subpoenaed Alicia’s records from the clinic. Alicia had not complained, but the agency had received a tip, she later learned.
“All this happened because I was in the clinic having a legal abortion,” she said. “All they cared about was judging me ... and building evidence for their case.”
Alicia said while the complication was scary at the time, it had been explained to her in advance as a possibility. She said she didn’t blame her doctor, Carhart, who practices in Nebraska as well as in Maryland.
In an interview, Carhart said that several of his patients have had their privacy violated.
After subpoenaing Alicia’s records, Nebraska’s health department disciplined a nurse at Carhart’s clinic for a pattern of negligence and unprofessional conduct involving a dozen patients, including Alicia.
Alicia said she asked state officials to identify who had filed the complaint that provided her name to state officials. To her amazement, she was told that information was confidential.
Marla Augustine, a health department spokeswoman, said in an email that patients are not notified if their records are examined “to protect the process from being contaminated.” For instance, a patient so notified could tip off a health provider about the existence of an investigation. That said, Augustine added: “The confidentiality of a patient’s medical records is very important to us, and a paramount consideration.”
Her explanation provides little comfort to Alicia.
“I don’t understand why whoever did this gets to be anonymous while I was the one who was supposed to not have my information leaked,” she said. “Why does that person get more rights than me?”
Has your medical privacy been compromised? Help ProPublica investigate by filling out a short questionnaire. You can also read other stories in our Policing Patient Privacy series.
How Yelp is Evolving in the Era of Big Data
Yelp may be best known for its restaurant and nightclub reviews, but the site’s seeds were actually planted when CEO Jeremy Stoppelman had trouble finding recommendations for a local doctor. Health providers now account for a rapidly growing six percent of Yelp’s reviewed businesses. Thanks to a new partnership with ProPublica, the site’s star ratings system is being supplemented with objective healthcare data.
ProPublica is helping Yelp to identify health metrics – including average wait times for emergency rooms and fines paid by nursing homes – to add to its provider pages. They are now available on nearly 26,000 pages, and more are coming soon. As part of the partnership, Yelp also is allowing ProPublica unprecedented access to its 1.3 million health reviews to help with our reporting.
This week, Stoppelman joins ProPublica senior reporter Charles Ornstein to discuss the debate over online reviews of health providers and Yelp’s increasing use of data across the site.
(Illustration: Emily Martinez/ProPublica)
Highlights from their conversation:
- Despite claims to the contrary by some displeased doctors, patients seem qualified to evaluate medical services. Stoppelman points to emerging academic research showing “a correlation between the ratings of a medical establishment and other sources of information that are perceived as quite objective.” Patients also provide insights on the full experience, not just the actual medical care delivered. (5:05)
- Yelp is poised to become a “one-stop shop,” integrating data across several review categories. Along with new information on its health provider pages, some of Yelp’s restaurant pages now feature health inspection scores. While Stoppelman says consumer opinions are important, other sources of information make Yelp “that much more powerful of a tool.” (7:55)
- The federal government has the green light to join the Yelp masses. The site already has thousands of reviews of federal agencies, but for years those agencies were not authorized to reply. A new partnership between Yelp and the federal government has changed this, allowing government organizations to claim their own pages and start interacting with the public. (13:20)
Listen to this podcast on iTunes, SoundCloud or Stitcher. For more on ProPublica’s partnership with Yelp, read Ornstein’s story, ‘Stay Far, Far Away’ and Other Things Gleaned From Yelp Health Reviews.
ProPublica Partners With Beacon to Promote Workers’ Comp Reporting
Today, ProPublica is teaming up with the journalism crowdfunding site Beacon to encourage more coverage of workers' comp across the country.
Nearly a century after most states established protections for the American worker, at least 33 have reduced benefits, created hurdles to getting medical care or made it more difficult to qualify for workers' comp, according to an ongoing investigation by ProPublica and NPR. It's an issue that potentially affects hundreds of thousands of workers who report serious work-related injuries or illnesses every year.
As part of our investigation, Insult to Injury, we asked people to tell us about their experiences navigating workers' comp claims — and more than 300 have shared their stories so far.
Now, we're partnering with Beacon to invite journalists to take these stories — along with state-by-state research, detailed benefits data, and our Reporting Recipe — to help us document the impact of workers' comp reductions across the country.
Beacon's platform gives journalists the tools they need to fund their work by connecting directly with engaged readers. Its goal is to power impactful, in-depth stories that matter to the public – a mission that aligns with our own. In the past, Beacon has successfully funded projects on mass incarceration, net neutrality, climate change and more.
Here's how journalists can join the Beacon-ProPublica workers' comp partnership:
1. Dig into the story. Check out ProPublica's Reporting Recipe for background on workers' comp, benefits data and policies by state.
2. Find a source. Sign up here to be matched with workers who've been affected where you live.
3. Pitch your project. Think you've got a solid story in the works? Awesome! Head to Beacon to pitch your project and start raising funds. It could be a story, an interactive or a multimedia project, as long as it builds on ProPublica's workers' comp investigation to explore the impact in your city or state. As an added incentive, Beacon will match the first $250 raised for any ProPublica-based pitches – just make sure to add the "Workers' Comp" tag.
4. Send us your story! Local journalists play a vital role in making broader accountability issues — like disparities in workers' comp — accessible and relevant to communities most affected. We're excited to be opening up our investigation to support Beacon journalists who share our mission. We look forward to seeing your great work.
How to Investigate Workers’ Comp In Your State
With income inequality and economic fairness at the center of national discussion, workers' compensation provides the perfect lens for examining how the social compact has changed. It is one of America's first safety net programs. And unlike other laws, it spells out a company's responsibility for its workers.
The American workers' comp system was born in the early 1900s as a "grand bargain" forged by business and labor as awareness grew about the grisly workplace accidents that came with industrialization. Workers gave up their right to sue their employers — even in cases of gross negligence — protecting businesses from lawsuit judgments that could bankrupt them. In exchange, workers were promised medical care for their injuries, enough wages to help them get by while they recovered and compensation for permanent disabilities.
But as a ProPublica investigation has found, state after state has been dismantling its workers' comp system, denying injured workers help when they need it most and shifting the cost of work-related disabilities onto public programs like Social Security Disability Insurance.
With more than 3.7 million work-related injuries and illnesses reported in 2013, these changes are hurting households across the country. But workers' comp legislation rarely gets significant news coverage, in part because it's such a bureaucratic system that varies state to state.
With this Reporting Recipe, we want to make it easier for journalists to find and report stories on changes in workers' comp policies and the impact on local workers. Read on for reporting tips, data and help finding potential sources. Still have questions? Email us at workerscomp@propublica.org.
What's happened in your state?
New laws in 33 states essentially did three things: They reduced benefits, gave employers and insurers more control over medical care or made it more difficult for workers with certain injuries and diseases to qualify.
To give the public a better sense of the national scope of the changes, ProPublica scoured state laws and built a database highlighting the most significant provisions. You can find it here. How have policies changed in your state? What groups or companies influenced those changes? How do they compare to those in neighboring states?
For more context on policies by state, here are a few other resources that might be helpful:
U.S. Occupational Safety and Health Administration report on workers' comp changes
National Academy of Social Insurance annual workers' comp report
National Council on Compensation Insurance state presentations
Finally, many state workers' comp systems produce their own annual reports with specific statistics. Be sure to check their websites.
Wait — aren't workers' comp costs going up?
Insurance premiums for workers' comp are affected by several factors, such as the company's history of workplace injuries, the number of workers it has and how much it pays them. When the economy is growing, as it is now, businesses hire more workers and give raises and their premiums typically go up.
But workers' comp rates — the amount employers pay for every $100 they pay in wages — are at or near historic lows in almost every state in the country. The state of Oregon has been tracking this since the mid-1980s. Find the average premium rates for employers in your state here. Are businesses claiming the rates are rising when the data shows they're falling?
How do I find out what the workers' comp benefits and rules are in my state?
During our reporting, one expert told us, "If you've read one workers' comp law, you've read one workers' comp law." There is no federal oversight of workers' comp. So benefits can vary dramatically even for states right next to one another.
For example, the maximum compensation for the loss of an eye is $27,280 in Alabama, but $261,525 in Pennsylvania. We found two workers who lived within 75 miles of each other and suffered arm amputations under similar circumstances. One received $45,000 in compensation for the loss of his arm while the other received lifetime benefits that could exceed $740,000 over 50 years. Why the vast difference? They worked in different states.
You can find the maximum amount of benefits workers can receive for permanent injuries to various body parts by state in this interactive graphic.
But be careful with how you report these numbers. There's a lot of nuance. The maximums are based on various circumstances, such as the worker's wages, the severity of the injury and sometimes age and education. Read our methodology page as well as the footnotes that accompany each state. For more detail about calculating the benefits, check the state law or contact your state's workers' comp bureau. Here's a list with links to their workers' comp agencies by state.
So how do I find workers who've been affected?
We asked our readers to tell us about their experiences with workers' comp and have heard from more than 300 people so far, including nearly 200 employees who said they are interested in being put in touch with reporters in their region. Journalists can sign up to be matched with a potential source by completing this form. Here's a quick look at the workers' comp stories we've received so far:
Several states including Florida, Illinois and California also allow the public to browse recent decisions or search for workers' comp cases by claimant name or employer.
In addition, local workers' comp attorneys, unions and worker advocacy groups can be helpful in finding injured workers. The Workers' Injury Law & Advocacy Group has a directory of lawyers who specialize in representing injured workers with workers' comp claims. The National Council for Occupational Safety and Health and Interfaith Worker Justice both have information about local worker centers around the country.
Get your story funded: If you're a local journalist, see our Beacon partnership to learn more about how to raise funds to report this story.
ProPublica’s ‘Get Involved’ Aims to Spur More Crowd-Powered News
Over the next year, with the support of the John S. and James L. Knight Foundation, ProPublica will be working to improve how we engage communities to help us create journalism that spurs change.
From our inception, two things have distinguished ProPublica's journalism: our focus on deep, investigative reporting and our use of data to explain how systems meant to serve the public often fall short. We employ classic investigative reporting and big data techniques both to expose problems and to illuminate potential remedies.
ProPublica reporter Marshall Allen and deputy data editor Olga Pierce are great examples of this strategy in action. The pair spent the better part of three years investigating the root causes of patient harm in U.S. hospitals (the third-leading cause of deaths in America, by some estimates), talking to hundreds of medical providers and patients and analyzing millions of rows of Medicare data to produce Surgeon Scorecard. For the first time, patients can explore the complication rates of nearly 17,000 surgeons before they entrust their lives to a doctor. A key ingredient in making this project possible? Our community.
ProPublica launched its patient safety investigation with a call for help that has now garnered more than 1,000 responses from patients and their loved ones. Many of these readers are also active in our 3,000-member Facebook group, an open forum for people impacted by patient harm to connect with each other. Scores of doctors and academics lent us their expertise as well, helping to model our complication rate data in a responsible and useful way.
At a time when the news industry mostly measures engagement in clicks, shares and retweets, it's encouraging to see the way ProPublica's patient safety community has grown. When the Senate convened a hearing last year on the persistence of preventable deaths in U.S. hospitals, testimony by leading advocates sparked a conversation in ProPublica's patient safety community.
Which leads me to a third thing that distinguishes ProPublica: For us, engagement is as much about cultivating communities as it is about getting people to click on our stories. It's no secret that ProPublica's chief goal is impact. We want our journalism to make a difference, and we see our community as active collaborators in that mission.
As journalists, our role is to gather the news and report it as objectively and artfully as possible. But anyone watching knows our journalism isn't limited to the pages we produce each day. Our readers are grateful for the work we do, but they want to know what can be done to make things better. They're clamoring for action.
One way we facilitate action is by asking people to tell us what we don't know. These "callouts" are a standing feature of Get Involved, which offers our readers the opportunity to share stories, and to connect with us and with each other. With more than 10,300 contributions since 2009, our callouts have become a growing resource for our reporters and the backbone of our community-building efforts. We hear regularly from people thanking us for simply taking an interest in them. People who want to get their stories out. People who want to see change.
Which leaves us asking ourselves: How can we do better by those who entrust their stories to us? How can we channel their passions and perspectives into meaningful action? And how can we connect readers not only to each other, but also to our colleagues in newsrooms across the country?
I'm excited to say these are questions we'll be tackling over the next year with the support of Knight Foundation. One of our first areas of focus will be revamping Get Involved to better serve our partners in journalism. We're not the only ones enlisting the help of audiences to tell important stories. The Guardian's crowd-sourced police shootings project, The Counted, is just one recent example. There are many collaborative journalism efforts in the United States and around the world that we hope to both learn from and share with our community. We'll be open-sourcing even more resources from our own investigations, but also facilitating outreach among fellow journalists using digital tools to tell stories with and for their communities.
We're starting today with the creation of the Crowd-Powered News Network, a forum for journalists and others proactively engaging communities in storytelling to share ideas, practical support and best practices.
Are you creating journalism — whether online, on air or in film — in partnership with your community? Sign up now to join the Crowd-Powered News Network.
