health

by Charles Ornstein

This story was co-published with NPR's Shots blog.

The scene in front of abortion clinics is often tense, with clinic workers escorting patients past activists waving signs and taking photographs.

But increasingly, another drama is unfolding out back. There, abortion opponents dig through the trash in search of patient information.

Using garbage as their ammunition, anti-abortion activists – who have sometimes been accused of violating abortion seekers’ privacy – are turning the tables. They claim it’s the clinics that are violating patients’ privacy by discarding medical records in unsecured ways.

“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,” said Cheryl Sullenger, senior policy advisor at Operation Rescue, an anti-abortion group based in Wichita, Kansas. “It’s so hypocritical.”

Abortion rights groups counter that while a small number of clinics have improperly disposed of records, the vast majority take strict precautions to protect patient privacy. It’s far more common, they say, for abortion opponents to trespass on private property or try to break into locked dumpsters.

“Oftentimes, the dumpsters are not on public property,” said Vicki Saporta, chief executive officer of the National Abortion Federation, the professional association for abortion providers. “These people trespass, their trespasses get reported, and law enforcement doesn’t end up prosecuting that level of criminal activity.”

Trash is at the center of several disputes involving patient privacy and abortion.

In Kansas City, Operation Rescue says a now-closed clinic improperly discarded records for at least 86 patients. In 2012, the group said it had received files from an informant, some of which included names and phone numbers. The group posted examples on its website.

Jeff Pederson, the former manager of the clinic, said the dumpster was located on private property and was locked. He later learned, however, that his waste company used a common key for all of its locked containers, which may have allowed an outsider to open it.

Pederson said he filed a complaint with local police about trespassing, which was caught on a low-resolution camera on the property, but it went nowhere. The state’s investigation into Operation Rescue’s complaint against the clinic and its physician remains open, Pederson said.

At least some cases involving abortion-clinic dumpster dives have resulted in complaints to the Office for Civil Rights within the Department of Health and Human Services. The office is charged with enforcing the Health Insurance Portability and Accountability Act, or HIPAA, which prohibits patients’ medical information from being shared without their consent.

The office cited three Michigan clinics in 2010 after abortion opponents said they found records including intake forms, driver's 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. It's corporate owner pleaded guilty to one count, which was dismissed six months later.

Since HIPAA only covers clinics if they transmit health information electronically, the Office for Civil Rights has been unable to pursue some complaints related to abortion records, spokeswoman Rachel Seeger said in an email. A Louisiana abortion clinic that was the subject of a 2014 privacy complaint fell outside the office’s jurisdiction for that reason, she said.

Sullenger said groups like hers began rummaging through clinics’ trash in part because they were having difficulty getting regulators interested in investigating abortion providers.

Activists see plenty of potential evidence in the material that clinics throw away, which has sometimes fallen into the hands of random passersby.

In 2012, for example, a Kansas woman found more than 1,000 abortion records dumped in a recycling bin outside an elementary school. The clinic had shut down. “I was under the impression that these would not be seen by anyone,” its former owner told the Kansas City Star. “I thought that these would be recycled away just like any other papers.”

Abortion opponents are as entitled as anyone else to help themselves to clinics’ discards, Sullenger said.

“If it’s lying out on the curb, it’s a free-for-all, you know what I’m saying? That’s the way we look at it,” she said.

Operation Rescue filed complaints with Texas regulators based on material found by volunteers in the dumpsters of several Texas abortion clinics in 2010 and 2011.

The group collected medical waste, as well as sonograms and documents containing patient names, the name of escorts, dates of abortion, whether the patient had been to the clinic before and the patient’s referral source, among other things.

Operation Rescue posted a couple of examples on its website, redacting patient names. “All of your information will be kept very confidential,” the clinic documents say. An investigation by the Texas Commission on Environmental Quality found that at least two clinics had improperly disposed of aborted fetuses.

Sometimes authorities are reluctant to act even when they are provided with evidence, anti-abortion activists say.

This year, Lynn Mills, a leader of Pro-Life Detroit, went to a shuttered abortion clinic near Flint, Mich., run by the same doctor who had operated the clinic cited in 2010 by the Office for Civil Rights. At the Flint facility, she said she discovered rows of boxes containing patient records from clinics the doctor had owned, as well as piles of syringes on the floor.

She called the authorities, but dispatch recordings show local law enforcement was unsure what to do about her discovery.

Mills was left frustrated. “You would think they’d say, ‘Thank you Lynn,’ ” she said. “Basically, nothing happened.”

Michigan health regulators said they “immediately” dispatched an inspector in the area to verify the building was secured and did so again after receiving a second call. They also contacted the Flint police department to see if they had sent a person out too, which they had.

“In short, the building was being used as a warehouse and secured,” wrote Michael Loepp, a spokesman for Michigan’s Department of Licensing and Regulatory Affairs, in an email.

The records were removed within days, Mills said, and the doctor is no longer licensed to practice in Michigan. The doctor did not return telephone calls seeking comment.

Occasionally, activists’ complaints about privacy violations have alerted authorities to broader problems involving abortion providers.

Last year, Operation Rescue filed a complaint against an Oklahoma City abortion doctor, saying an “anonymous source” had provided the group with medical records that had been thrown away in unsecured 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.”

Sullenger said she recognizes that sifting through garbage appears unsavory, but she said it won’t stop anytime soon.

“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.”

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