First, let me say (and I’ve been quite vocal in the past) I absolutely do not support the PBA ban because I believe that 1. such decisions belong to the state to begin with, 2. It is too restrictive and might result in permanent health damage to the mother, from a doctor who would definitely err on the side of caution rather than performing the procedure and potentially face a witch hunt.
That being said, I believe the summoning of medical records is justified, and they are within their rights…with the exception that there is no Constitutional grounds for the federal government to be involved in a medical decision in the first place. There is clearly no way to enforce this ban otherwise, and even Roe v Wade
agrees with them. Remember, Roe was a privacy decision regarding medical records and doctor/ patient confidentiality as well. In that instance, the court concluded that as the fetus gained complexity, the state had compelling interest rights which usurped the privacy rights of the expectant mother. This is why late term abortion (except in the case of health risk or potential death) had already been banned in almost all states even before the PBA ban passed.
Excerpts from Roe transcript:
On the basis of elements such as these, appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The [410 U.S. 113, 154] Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.At some point in pregnancy, these respective interests become sufficiently compelling to sustain regulation of the factors that govern the abortion decision. The privacy right involved, therefore, cannot be said to be absolute.
We, therefore, conclude that the right of personal privacy includes the abortion decision, but that this right is not unqualified and must be considered against important state interests in regulation.
(and again later)
The pregnant woman cannot be isolated in her privacy. She carries an embryo and, later, a fetus, if one accepts the medical definitions of the developing young in the human uterus. See Dorland's Illustrated Medical Dictionary 478-479, 547 (24th ed. 1965). The situation therefore is inherently different from marital intimacy, or bedroom possession of obscene material, or marriage, or procreation, or education, with which Eisenstadt and Griswold, Stanley, Loving, Skinner, and Pierce and Meyer were respectively concerned. As we have intimated above, it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.