Ashcroft promises that the names of the women will be shielded. He says he needs their records to defend a legal challenge of the ban on the procedure known to its critics as partial birth abortion that President George W. Bush signed into law in November. But issuing government subpoenas to gain access to hospital records is unprecedented. A Chicago judge has already quashed one subpoena, and hospitals in New York and Philadelphia targeted by the Justice Department are weighing their response.
Why would the attorney general mount such a politically risky witch hunt? The short answer is he can’t help himself. Ashcroft is a zealot when it comes to curbing abortion rights, and pursuing these records is his way of enforcing the law to further his ideological agenda. What he’s done is a classic case of right-wing Republican overreaching. When the National Abortion Federation and a group of seven doctors who provide abortion services sued Ashcroft on the grounds that the outlawed procedure is medically necessary, the attorney general went nuclear. He countered with the subpoenas, daring the physicians to back up their claims with records going back five years, well before the ban was in place and involving women who are not parties to the law suit.
Democrats on Capitol Hill have been slow to jump on Ashcroft’s latest atrocity. The “partial birth” abortion ban is so new that neither side knows quite what to expect. While Chicago judge Charles P. Kocoras immediately ruled the subpoena request out of bounds, New York judge Richard Conway Casey had the opposite take. Casey ordered the doctors and hospitals involved to turn over the records and vowed he would not let them “hide” behind medical privacy laws recently put into place by the Bush administration. The judge, a Clinton appointee, said he believed the physicians would ultimately prevail. But by initiating the law suit and claiming the procedures they performed were medically necessary, they opened the door to having those records examined.
Another judge in Philadelphia has yet to weigh in, and there are more twists and turns before this issue is resolved. But if Ashcroft wasn’t so adamant in his opposition to abortion, he never would have pursued this in the first place. This is selective enforcement. He could just as easily have settled this case quietly and with appropriate compromises. He didn’t have to go to the barricades and issue subpoenas, which have a chilling effect on physicians who perform abortions and add another level of fear for women seeking an abortion. He chose aggressive enforcement because it suits his ideological agenda.
Conversely, if he disagrees with a law, he is less eager to enforce it. Under Ashcroft, enforcement of federal gun control laws has suffered. He ended the routine exchange of information about gun ownership within the Justice Department, erecting unnecessary fire walls that could hinder the fight against terrorism. And he issued a directive ordering law enforcement personnel to destroy records of gun licenses within 24 hours where they had been allowed to keep them up to 90 days. Catching up with illegal gun buyers often takes more than 24 hours, but Ashcroft is a purist on Second Amendment rights and imposes his views wherever he can.
California Senator Barbara Boxer has taken the lead on Capitol Hill in demanding Ashcroft explain himself. An aide says Boxer is “mystified” that Ashcroft would use subpoenas to get such sensitive medical information. “She thinks this is an unnecessary fishing expedition. The kind of information they say they’re looking for can be gotten from expert testimony.” Some Republicans share Boxer’s concern that Ashcroft has gone over the line and could provoke a backlash among the suburban women voters Bush needs in November. “Whether you support it or not, a ban on partial birth abortion seems mainstream,” says a top aide to a senior GOP senator. “But when you start subpoenaing the medical records of women who have had late-term abortions, it scares the heck out of people.”
It’s a long time until November, the aide mused, but it’s starting to look a lot like 1992, when another Bush who was in the White House looked out of touch. The elder Bush’s bewilderment over his encounter with a supermarket scanning device crystallized the doubts voters had about him. An analogous moment for the current President Bush occurred when he signed the partial birth abortion ban surrounded by a phalanx of white men in blue suits. Not a single woman was pictured, even though women are principally affected by the legislation. The men were all smiling. Their celebration may have been premature.
