IN THE 

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

________________________

No. 04–1379

NORTHWESTERN MEMORIAL HOSPITAL,

Plaintiff-Appellee,

v.

JOHN ASHCROFT, Attorney General of the United States,

Defendant-Appellant.

__________________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 04 C 55—Charles P. Kocoras, Chief Judge.

__________________________

Argued March 23, 2004—Decided March 26, 2004*

__________________________

Before POSNER, MANION, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge. The government appeals from an 

order by the district court quashing a subpoena commanding 

Northwestern Memorial Hospital in Chicago to produce the

medical records of certain patients on whom Dr. Cassing

Hammond had performed late-term abortions at the hospital 

using the controversial method known variously as “D & X” (dilation and extraction) and “intact D & E” (dilation and evacuation). We accelerated briefing and argument, and now accelerate our decision, in view of the pressures of time discussed 

later in the opinion.

 

* This opinion is being released in typescript; a printed version will follow.
No. 04–1379 2

The subpoenaed records, apparently some 45 in number, 

are sought for use in the forthcoming trial in the Southern District of New York of a suit challenging the constitutionality of 

the Partial-Birth Abortion Ban Act of 2003, Pub. L. No. 108–

105, 117 Stat. 1201, 18 U.S.C. § 1531. See National Abortion 

Federation v. Ashcroft, No. 03 Civ. 8695 (Rcc), 2004 WL 540470 

(S.D.N.Y. Mar. 17, 2004) (order denying summary judgment for 

plaintiffs). Dr. Hammond is one of the plaintiffs in that suit 

and will also be testifying as an expert witness. The district 

court held that the production of the records is barred by regulations issued under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. 104–191, 110 Stat. 

1936, and let us begin there.

Section 264 of HIPAA, 42 U.S.C. § 1320d–2 Note, directs 

the Secretary of Health and Human Services to promulgate

regulations to protect the privacy of medical records, but provides in subsection (c)(2) that such a regulation “shall not supercede a contrary provision of State law, if the provision of 

State law imposes requirements, standards, or implementation 

specifications that are more stringent than the requirements, 

standards, or implementation specifications imposed under the 

regulation.” See also 45 C.F.R. § 160.203(b). A standard is

“more stringent” if it “provides greater privacy protection for 

the individual who is the subject of the individually identifiable 

health information” than the standard in the regulation. §

160.202(6).

The particular focus of the appeal is an HHS regulation entitled “Standard: Disclosures for Judicial and Administrative 

Proceedings,” § 164.512(e), which authorizes a “covered entity” 

(such as Northwestern Memorial Hospital) to disclose private 

health information in judicial or administrative proceedings “in 

response to an order of a court.” § 164.512(e)(1)(i). The regulation also allows the disclosure of such information in those proceedings “in response to a subpoena, discovery request, or other 

lawful process,” § 164.512(e)(1)(ii), if the party seeking the information either notifies the patient (or at least makes a good 

faith effort to do so) or makes a “reasonable effort” to secure a 

qualified protective order, that is, an order that prohibits the 
No. 04–1379 3

use or disclosure of the information outside the litigation and 

requires the return or destruction of the information at the end 

of the litigation. 45 C.F.R. § 164.512(e)(1)(v).

The district judge presiding over the case in New York issued an order authorizing, although not directing, the hospital 

to provide the records to the government after redaction to remove information identifying the patients. The parties agree 

that his order is an “order” within the meaning of the “in response” provision. It hardly matters; the government didn’t

need such an order because it had obtained a protective order, 

thus qualifying under the alternative procedure for disclosure 

of medical records. But under Illinois law, even redacted medical records are not to be disclosed in judicial proceedings, with 

immaterial exceptions. 735 ILCS 5/8–802; Department of Professional Regulation v. Manos, 761 N.E.2d 208, 216–17 (Ill. 

App. 2001); Parkson v. Central DuPage Hospital, 435 N.E.2d 

140, 143–44 (Ill. App. 1982). The district court in our case ruled 

that the Illinois law, because it sets a “more stringent” standard for disclosure than the HIPAA regulation, trumps that 

regulation by virtue of HIPAA’s supersession provision. So he 

quashed the subpoena, precipitating this appeal.

Although the issue is not free from doubt, we agree with 

the government that the HIPAA regulations do not impose

state evidentiary privileges on suits to enforce federal law. Illinois is free to enforce its more stringent medical-records privilege (there is no comparable federal privilege) in suits in state 

court to enforce state law and, by virtue of an express provision 

in Fed. R. Evid. 501, in suits in federal court (mainly diversity 

suits) as well in which state law supplies the rule of decision. 

But the Illinois privilege does not govern in federal-question 

suits, such as the suit in the Southern District of New York. 

The enforcement of federal law might be hamstrung if statelaw privileges more stringent than any federal privilege regarding medical records were applicable to all federal cases. 

We say “might” not “would” because some federal statutes authorize subpoenas in terms that would override the HIPAA 

regulations. See, e.g., 18 U.S.C. § 3486; In re Subpoena Duces 

Tecum, 228 F.3d 341 (4th Cir. 2000). But almost certainly 
No. 04–1379 4

there are gaps; and we think it improbable that HHS intended 

to open such a can of worms when it set forth a procedure for 

disclosure of medical records in litigation—intended, that is, to 

be regulating, actually or potentially (depending on other

statutory provisions regulating subpoenas), the litigation of

federal employment discrimination cases, social security disability cases, ERISA cases, Medicare and Medicaid fraud cases, 

Food and Drug Administration cases, and the numerous other 

classes of federal case in which medical records whether of the 

parties or of nonparties would not be privileged under federal 

evidence law.

All that 45 C.F.R. § 164.512(e) should be understood to do, 

therefore, is to create a procedure for obtaining authority to 

use medical records in litigation. Whether the records are actually admissible in evidence will depend among other things 

on whether they are privileged. And the evidentiary privileges 

that are applicable to federal-question suits are given not by 

state law but by federal law, Fed. R. Evid. 501, which does not 

recognize a physician-patient (or hospital-patient) privilege.

Rule 501 in terms makes federal common law the source of any 

privileges in federal-question suits unless an Act of Congress 

provides otherwise. We do not think HIPAA is rightly understood as an Act of Congress that creates a privilege.

The purely procedural character of the HIPAA standard for 

disclosure of medical information in judicial or administrative 

proceedings is indicated by the procedure for disclosure in response to a subpoena or other process; the notice to the patient 

must contain “sufficient information about the litigation or

proceeding in which the protected health information is requested to permit the individual to raise an objection to the 

court.” § 164.512(e)(1)(iii)(B). The objection in court would often 

be based on a privilege—the source of which would be found 

elsewhere than in the regulations themselves.

This conclusion is buttressed by a HIPAA regulation which 

says that the “more stringent” clause applies only to “individually identifiable health information,” § 160.203(b), as opposed 

to “health information that does not identify an individual and 

with respect to which there is no reasonable basis to believe 
No. 04–1379 5

that the information can be used to identify an individual.” § 

164.514(a). Provided that medical records are redacted in accordance with the redaction requirements (themselves quite

stringent) of § 164.514(a), they would not contain “individually 

identifiable health information” and the “more stringent” 

clause would fall away.

As an alternative basis for quashing the subpoena, the district judge undertook to craft a new federal common law privilege for abortion records. He based this ruling on their sensitivity, which he compared to that of psychotherapists’ treatment 

records, held privileged in Jaffee v. Redmond, 518 U.S. 1

(1996). The creation of new common law evidentiary privileges 

is authorized by Fed. R. Evid. 501, and Jaffee is not the only 

recent case in which the authority was exercised. Goodyear 

Tire & Rubber Co. v. Chiles Power Supply, Inc., 332 F.3d 976, 

979–81 (6th Cir. 2003); In re Air Crash Near Cali, Colombia, 

959 F. Supp. 1529, 1533–35 (S.D. Fla. 1997), and United States 

v. Lowe, 948 F. Supp. 97, 99–100 (D. Mass. 1996), all created 

new privileges on the authority of Jaffee. But none relates to 

medical records and we are reluctant to embark on a case-bycase determination of the relative sensitivity of medical records 

of different ailments or procedures. Most medical records are 

sensitive, and many are as sensitive as late-term abortion records, such as the records of AIDS patients. Proceeding down 

the path taken by the district court would inevitably result in 

either arbitrary line drawing or the creation of an Illinois-type 

comprehensive privilege for medical records. Northwestern

Memorial Hospital concedes that there is no federal common 

law physician-patient privilege. It is not for us—especially in so 

summary a proceeding as this litigation to quash the government’s subpoena—to create one, whether all at once or by a 

process of slow but inevitable additions to the sole category 

recognized by Jaffee. Cf. University of Pennsylvania v. EEOC, 

493 U.S. 182, 188–89 (1990); United States v. Nixon, 418 U.S. 

683, 707–13 (1974); In re Witness Before Special Grand Jury 

2000–2, 288 F.3d 289 (7th Cir. 2002); In re Sealed Case, 148 

F.3d 1073, 1078–79 (D.C. Cir. 1998) (per curiam).
No. 04–1379 6

The district court did not reach a further ground urged by 

Northwestern Memorial Hospital for quashing the government’s subpoena, which is simply that the burden of compliance with it would exceed the benefit of production of the material sought by it. Fed. R. Civ. P. 45(c)(3)(A)(iv); Deitchman v. 

E.R. Squibb & Sons, Inc., 740 F.2d 556, 563 (7th Cir. 1984); 

Roberts v. Shawnee Mission Ford, Inc., 352 F.3d 358, 361–

62 (8th Cir. 2003); Miscellaneous Docket Matter # 1. v. Miscellaneous Docket Matter # 2, 197 F.3d 922, 926–27 (8th Cir. 

1999); In re Sealed Case, 162 F.3d 670, 673–74 (D.C. Cir. 1998). 

However, in support of his ruling expanding the federal common law of privilege to embrace the medical records of abortion 

patients, the judge made findings that are highly germane to—

indeed arguably dispositive of—the Rule 45(c) issue. He

pointed out that the “government seeks these records on the 

possibility that it may find something therein which would affect the testimony of Dr. Hammond adversely, that is, for its 

potential value in impeaching his credibility as a witness. 

What the government ignores in its argument is how little, if 

any, probative value lies within these patient records.” He contrasted the dearth of probative value “with the potential loss of 

privacy that would ensue were these medical records used in a 

case in which the patient was not a party” and concluded that 

“the balance of harms resulting from disclosure severely outweighs the loss to the government through non-disclosure.”

These findings were solidly based. The hospital had urged 

both the lack of probative value of the records and the loss of 

privacy by the patients. The government had responded in

generalities, arguing that redaction would eliminate any privacy concern and that since Dr. Hammond had “made assertions of fact about his experience and his patients that plaintiffs are using to support their claim that, without a health exception, the Act is unconstitutional,” the government should be 

permitted to test those assertions; but the government had not 

indicated what assertions these were or how the records might 

bear on them. Although on appeal the hospital repeated at

length its reasons for believing that the records sought by the 

government would have little or no probative value, the gov-
No. 04–1379 7

ernment’s response in both its opening brief and its reply brief 

remained vague to the point of being evasive.

At the oral argument we pressed the government’s lawyer 

repeatedly and hard for indications of what he hoped to learn 

from the hospital records, and drew a blank. (Contrary to our 

usual practice, we did not limit the length of the oral argument.) The lawyer did suggest that if Hammond testified that 

patients with leukemia are better off with the D & X procedure 

than with the conventional D & E procedure but the medical 

records indicate that not all abortion patients with leukemia 

undergo D & X abortions, this would both impeach Hammond 

and suggest that D & X is not the only medically safe abortion 

procedure available to pregnant women afflicted with leukemia. But such information would be unlikely to be found in 

Hammond’s records, given his strongly expressed preference

for using the D & X method in the case of patients in fragile 

health. The information would be much more likely to be found 

in the records of physicians who perform D & E rather than D 

& X abortions on such women. Those records, however, the

government didn’t seek.

We learned at argument for the first time that Dr.

Hammond has been deposed in the New York litigation. The 

questions and answers in his deposition might illuminate the 

relevance of the medical records for impeachment of his testimony at the trial. But the government has made no effort to 

make the deposition a part of the record.

Ordinarily when a district judge has not addressed an issue

committed to his discretion, such as the balance of benefit and 

burden in complying with a subpoena, e.g., Peate v. McCann, 

294 F.3d 879, 884 (7th Cir. 2002); Deitchman v. E.R. Squibb & 

Sons, Inc., supra, 740 F.2d at 563; Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 729 (8th Cir. 2002), and the issue becomes critical to the disposition of the appeal, the appellate

court must remand to give the judge a chance to exercise his 

discretion. Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709 

(1986). We do not follow that course, here, however, for two

reasons. The first is that the judge, in the passages we quoted 

from his opinion, struck the balance—in other words,
No. 04–1379 8

“weigh[ed the] competing hardships.” Deitchman v. E.R.

Squibb & Sons, Inc., supra, 740 F.2d at 563. True, he did so in 

the course of addressing a different issue from whether Rule 

45(c) required that the subpoena be quashed; but, realistically, 

the result of a remand is foreordained.

The second reason is that with the trial in New York

scheduled to begin on March 29 and to last only four weeks, the 

practical effect of a remand would be to moot the issue of compliance with the subpoena. The time factor is unfortunate, and 

is not the fault of the government (or of anyone else, so far as 

appears). If time permitted a remand, the judge would on remand examine the records, or at least a sample of them, in 

camera, as in the parallel subpoena case of Planned Parenthood Federation of America, Inc. v. Ashcroft, No. C03–4872 

PJH, 2004 WL 432222 (N.D. Cal. Mar. 5, 2004), to determine 

whether they are likely to have any probative value. Time does 

not permit. The government has not suggested that the case be 

remanded if we reject the district court’s grounds for quashing 

the subpoena. A remand would be tantamount to mooting its 

appeal; in the government’s words, “a remand would entirely 

frustrate the Government’s interest in preparing a timely defense in the New York trial, which will begin on March 29.” We 

take this as a waiver of any objection to our weighing the hardships ourselves, and we proceed to the weighing. See Beer 

Nuts, Inc. v. Clover Club Foods Co., 805 F.2d 920, 923 n.

2 (10th Cir. 1986); McCord v. Bailey, 636 F.2d 606, 613 (D.C. 

Cir. 1980); cf. International Ins. Co. v. Caja Nacional De

Ahorro y Seguro, 293 F.3d 392, 401 (7th Cir. 2002); Dillard v. 

City of Greensboro, 213 F.3d 1347, 1355–57 (11th Cir. 2000).

Like the district judge, we think the balance weighs in favor of quashing the subpoena. The government does not deny 

that the hospital is an appropriate representative of the privacy interests of its patients. Parkson v. Central DuPage Hospital, supra, 435 N.E.2d at 142. But it argues that since it is 

seeking only a limited number of records and they would be 

produced to it minus the information that would enable the 

identity of the patient to be determined, there is no hardship to 

either the hospital or the patients of compliance. The argument 
No. 04–1379 9

is unrealistic and incomplete. What is true is that the administrative hardship of compliance would be modest. But it is not 

the only or the main hardship. The natural sensitivity that

people feel about the disclosure of their medical records—the 

sensitivity that lies behind HIPAA—is amplified when the records are of a procedure that Congress has now declared to be a 

crime. Even if all the women whose records the government 

seeks know what “redacted” means, they are bound to be skeptical that redaction will conceal their identity from the world. 

This is hardly a typical case in which medical records get

drawn into a lawsuit. Reflecting the fierce emotions that the 

long-running controversy over the morality and legality of

abortion has made combustible, the Partial-Birth Abortion Ban 

Act and the litigation challenging its constitutionality—and 

even more so the rash of suits around the country in which the 

Department of Justice has been seeking the hospital records of 

abortion patients—have generated enormous publicity. These 

women must know that, and doubtless they are also aware that 

hostility to abortion has at times erupted into violence, including criminal obstruction of entry into abortion clinics, the firebombing of clinics, and the assassination of physicians who

perform abortions.

Some of these women will be afraid that when their redacted records are made a part of the trial record in New York, 

persons of their acquaintance, or skillful “Googlers,” sifting the 

information contained in the medical records concerning each 

patient’s medical and sex history, will put two and two together, “out” the 45 women, and thereby expose them to

threats, humiliation, and obloquy. As the court pointed out in 

Parkson v. Central DuPage Hospital, supra, 435 N.E.2d at 144, 

“whether the patients’ identities would remain confidential by 

the exclusion of their names and identifying numbers is questionable at best. The patients’ admit and discharge summaries 

arguably contain histories of the patients’ prior and present

medical conditions, information that in the cumulative can

make the possibility of recognition very high.” In its opening 

brief, as throughout the district court proceeding, the government expressly reserved the right, at a later date, to seek the 
No. 04–1379 10

identity of the patients whose records are produced. Pressed at 

argument, the government’s lawyer abandoned the reservation; 

but we do not know what would prevent reconsideration should 

the government, the subpoena having been enforced, discover 

that particular medical records that it had obtained were incomplete, opaque, or ambiguous.

Even if there were no possibility that a patient’s identity 

might be learned from a redacted medical record, there would 

be an invasion of privacy. 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. 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.

If Northwestern Memorial Hospital cannot shield its abortion patients’ records from disclosure in judicial proceedings,

moreover, the hospital will lose the confidence of its patients, 

and persons with sensitive medical conditions may be inclined 

to turn elsewhere for medical treatment. It is not as if the government were seeking medical records from every hospital and 

clinic that performs late-term abortions, in which event women 

wanting assurance against the disclosure of their records

would have nowhere to turn. It is Dr. Hammond’s presence in 

the New York suit as plaintiff and expert that has resulted in 

the government’s subpoenaing Northwestern Memorial Hospital.

The concerns that the hospital has articulated do not necessarily justify withholding probative evidence from the government; nor can the possibility that medical records of abortion patients would yield evidence germane to the constitutionality of the Partial-Birth Abortion Ban Act be gainsaid. A

nearly identical state predecessor of the Act was invalidated by 

the Supreme Court in Stenberg v. Carhart, 530 U.S. 914 (2000), 

because it did not permit the D & X procedure in cases in 

which it is required to protect the health of the pregnant

woman. Id. at 930–38. In response, the preamble to the Act 

contains a finding that the procedure is never required for
No. 04–1379 11

health reasons. 117 Stat. 1201, § 2. The government concedes 

as it must that this finding, although entitled to respectful consideration, does not bind the courts. E.g., United States v. Morrison, 529 U.S. 598, 614 (2000); Turner Broadcasting System, 

Inc. v. FCC, 512 U.S. 622, 665–66 (1994) (plurality). The issue 

of medical necessity remains for determination at the trial in 

New York, where Dr. Hammond will testify that he believes

there are situations in which the D & X procedure is medically 

indicated. The essential difference between that procedure and 

the conventional D & E procedure is that in the latter procedure the fetus is destroyed while it is still entirely within the 

womb, while in the former procedure it is destroyed after the 

lower extremities, and sometimes the torso, have emerged from 

the womb and only the head remains inside. It is because part 

of the fetus is outside the womb when the fetus is destroyed 

that the supporters of the Act describe the D & X procedure as 

“partial birth” abortion. Dr. Hammond and other D & X practitioners argue that because less of the fetus is in the womb 

there is less danger of cutting the woman’s tissues with the

sharp knives used to dismember the fetus’s body in the conventional D & E procedure and causing hemorrhaging, and that if 

the woman is in fragile health avoiding that danger is medically indicated.

The merits of the dispute are for determination at trial.

The only issue for us is whether, given that there is a potential 

psychological cost to the hospital’s patients, and a potential

cost in lost goodwill to the hospital itself, from the involuntary 

production of the medical records even as redacted, the cost is 

offset by the probative value of the records. The district judge 

presiding at the trial has said that the records are “relevant,” 

and no doubt they are—in the attenuated sense in which nonprivileged materials may be sought in discovery. “Relevant information need not be admissible at the trial if the discovery 

appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R. Civ. P. 26(b)(1); see Oppenheimer 

Fund, Inc. v. Sanders, 437 U.S. 340, 350–52 (1978); CSC Holdings, Inc. v. Redisi, 309 F.3d 988, 995–96 (7th Cir. 2002). The 
No. 04–1379 12

trial judge has not opined on the probative value of the records, 

which appears to be meager.

The government has had repeated opportunities to articulate a use for the records that it seeks, and it has failed to do 

so. What it would like to prove at the trial in New York, to refute Dr. Hammond, is that D & E is always an adequate alternative, from the standpoint of a pregnant woman’s health, to 

the D & X procedure. But the government has failed to explain 

how the record of a D & X abortion would show this. And it is 

not as if Hammond had relied on the medical records of his patients in preparing his expert testimony. (Had he done so, they 

would have had to be disclosed to the government under Fed. 

R. Civ. P. 26(a)(2).) He doesn’t have the records, is not basing 

his testimony on them, and so far as appears doesn’t even 

remember them.

None of the records is going to state that Dr. Hammond 

said that he performed a D & X although he believed that a D 

& E would be just as good. We thought the government might 

be hoping to find in the records evidence that Hammond had 

lied when he said he had performed a D & X on a woman who 

had leukemia or a woman who had breast cancer, but at argument the government disclaimed any such suggestion. We’re 

still at a loss to understand what it hopes to gain from such 

discovery. (We begged the government’s lawyer to be concrete.) 

Of course, not having seen the records, the government labors 

under a disadvantage, although it has surely seen other medical records. And of course, pretrial discovery is a fishing expedition and one can’t know what one has caught until one fishes. 

But Fed. R. Civ. P. 45(c) allows the fish to object, and when 

they do so the fisherman has to come up with more than the 

government has been able to do in this case despite the excellence of its lawyers.

The Partial-Birth Abortion Ban Act was passed, as we said, 

in response to the Supreme Court’s decision in the Stenberg

case. Stenberg was one of a number of “first generation” partial-birth cases. The others were Hope Clinic v. Ryan, 195 F.3d 

857 (7th Cir. 1999) (en banc); Planned Parenthood of Wisconsin 

v. Doyle, 162 F.3d 463 (7th Cir. 1998); Planned Parenthood of 
No. 04–1379 13

Greater Iowa, Inc. v. Miller, 195 F.3d 386 (8th Cir. 1999); Little 

Rock Family Planning Services, P.A. v. Jegley, 192 F.3d 794 

(8th Cir. 1999); Summit Medical Associates, P.C. v. Pryor, 180 

F.3d 1326 (11th Cir. 1999); Richmond Medical Center for

Women v. Gilmore, 144 F.3d 326 (4th Cir. 1998); Women’s 

Medical Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 

1997); Armstrong v. State, 989 P.2d 364 (Mont. 1999); WomanCare of Southfield, P.C. v. Granholm, 143 F. Supp. 2d 827 (E.D. 

Mich. 2000); Rhode Island Medical Soc. v. Whitehouse, 66 F. 

Supp. 2d 288 (D.R.I. 1999), affirmed, 239 F.3d 104 (1st Cir.

2001) (per curiam); Richmond Medical Center for Women v.

Gilmore, 55 F. Supp. 2d 441 (E.D. Va. 1999), affirmed, 224 F.3d 

337 (4th Cir. 2000) (per curiam); Causeway Medical Suite v. 

Foster, 43 F. Supp. 2d 604 (E.D. La. 1999), affirmed, 221 F.3d 

811 (5th Cir. 2000); A Choice for Women v. Butterworth, 54 F. 

Supp. 2d 1148 (S.D. Fla. 1998); Planned Parenthood of Central 

New Jersey v. Verniero, 22 F. Supp. 2d 331 (D.N.J. 1998);

Planned Parenthood of Central New Jersey v. Verniero, 41 F. 

Supp. 2d 478 (D.N.J. 1998), affirmed, 220 F.3d 127 (3d Cir.

2000); Eubanks v. Stengel, 28 F. Supp. 2d 1024 (W.D. Ky.

1998), affirmed, 224 F.3d 576 (6th Cir. 2000) (per curiam); 

Midtown Hospital v. Miller, 36 F. Supp. 2d 1360 (N.D. Ga.

1997); Planned Parenthood of Southern Arizona, Inc. v. Woods, 

982 F. Supp. 1369 (D. Ariz. 1997); Evans v. Kelley, 977 F. Supp. 

1283 (E.D. Mich. 1997). In one of the cases decided by this 

court, Hope Clinic v. Ryan, supra, Dr. Hammond was both a 

plaintiff and an expert witness. Hope Clinic v. Ryan, 995 F. 

Supp. 847, 849–550 (N.D. Ill. 1998). Yet in none of these many 

cases, so far as either we or the government is aware, was it so 

much as suggested that patient records might contain information that would help answer the question, crucial then as now, 

whether the D & X procedure is ever medically necessary.

Although Hammond is a plaintiff in the New York case,

presumably because he actually performs D & X abortions and 

wants to be allowed to continue doing so, he will be testifying 

as an expert medical witness. Of all experts who testify in 

court, physicians are probably the most common. Yet the government has cited to us no case before this one in which medi-
No. 04–1379 14

cal experts’ patient records were used to impeach the expert 

(Langley v. Coughlin, No. 84 Civ. 5431, 1989 WL 436675

(S.D.N.Y. June 19, 1989), rejected the attempt, in a helpful discussion), though in malpractice cases it is not uncommon to use 

redacted medical records bearing on the defendant’s alleged 

negligence for impeachment, as in Terre Haute Regional Hospital, Inc. v. Trueblood, 600 N.E.2d 1358 (Ind. 1992), and Todd v. 

South Jersey Hospital System, 152 F.R.D. 676, 684–85 (D.N.J. 

1993).

Were the government sincerely interested in whether D & 

X abortions are ever medically indicated, one would have expected it to seek from Northwestern Memorial Hospital statistics summarizing the hospital’s experience with late-term abortions. Suppose the patients who undergo D & X abortions are 

identical in all material respects (age, health, number of weeks 

pregnant, and so on) to those who undergo procedures not forbidden by the Partial-Birth Abortion Ban Act. That would be 

potent evidence that the D & X procedure does not have a compelling health rationale. No such evidence has been sought, in 

contrast to the Planned Parenthood case, supra, at Transcript 

26 (Mar. 5, 2004). A variant of the suggested approach would 

be to obtain a random sample of late-term abortion records 

from various sources and then determine, through good statistical analysis, whether the patient characteristics that lead Dr. 

Hammond to perform a D & X lead other physicians to perform 

a conventional D & E instead, and whether there are differences in the health consequences for these two groups of

women. If there are no differences, the government might have 

a good defense of the Act. Gathering records from Hammond’s 

patients alone will not be useful; but if the government has

other records (say, from VA hospitals) already in its files, then 

records of Hammond’s procedures might enable a useful comparison. The government hasn’t suggested doing anything like 

that either. Its motives in seeking individuals’ medical records 

remain thoroughly obscure.

The question whether the D & X procedure is ever medically indicated will be resolved as a matter of legislative fact 

not requiring the taking of trial-type testimony at all (see Hope 
No. 04–1379 15

Clinic v. Ryan, supra, 195 F.3d at 885 (dissenting opinion)), or 

will pivot on the clash of expert witnesses at the New York

trial, or perhaps, as suggested in Stenberg, will be answered by 

some combination of these two approaches to determining

facts. The medical records of expert witnesses are irrelevant to 

the first inquiry; and, so far as we can determine after having 

listened to the government’s arguments at length, those records will not figure significantly in the resolution of experts’ 

disagreements either.

The fact that quashing the subpoena comports with Illinois’ 

medical-records privilege is a final factor in favor of the district 

order’s action. As we held in Memorial Hospital for McHenry 

County v. Shadur, 664 F.2d 1058, 1061 (7th Cir. 1981), comity 

“impels federal courts to recognize state privileges where this 

can be accomplished at no substantial cost to federal substantive and procedural policy.” See also United States v. One Parcel of Property Located at 31–33 York Street, 930 F.2d 139,

141 (2d Cir. 1991) (per curiam). Patients, physicians, and hospitals in Illinois rely on Illinois’ strong policy of privacy of

medical records. They cannot rely completely, for they are not 

entitled to count on the state privilege’s being applied in federal court. But in a case such as this in which, so far as we can 

determine, applying the privilege would not interfere significantly with federal proceedings, comity has required us not to 

apply the Illinois privilege, but to consider with special care the 

arguments for quashing the subpoena on the basis of relative 

hardship under Fed. R. Civ. P. 45(c).

AFFIRMED.
MANION, concurring in part, dissenting in part. I agree with the court that HIPPA does

not adopt state privilege law in a federal question suit brought in federal court, but rather Rule

501 of the Federal Rules of Evidence governs the evidentiary privileges applicable in such suits. 

Opinion at 3. I also agree that it is not for us to create a federal common law physician-patient

privilege where none exists, and that the redacted medical records are not privileged. Opinion at

4. However, for several reasons, I disagree with the court’s conclusion that enforcing the

subpoena creates an undue burden under Fed. R. Civ. P. 45(c)(3)(A)(iv). In passing HIPPA,

Congress recognized a privacy interest only in “individually identifiable medical records” and not

redacted medical records, and HIPPA preempts state law in this regard. The “de-identification”

(redaction) of all identifying information from the medical records and the extensive protective

order in place also eliminates any privacy interest in the records. Additionally, not only are the

records in this case relevant, as the court acknowledges, but they are highly probative of the

underlying issue. Finally, contrary to the court’s conclusion that quashing the subpoena occurs

“at no substantial cost to federal substantive and procedural policy,” both suffer greatly. This

court should enforce the subpoena. I therefore concur in part and dissent in part.

As the court recognizes, in section 264 of HIPPA, Congress authorized the Secretary of

Health and Human Services to promulgate regulations to protect the privacy of medical records. 

Opinion at 2 (citing 42 U.S.C. § 1320d-2). Therefore, HIPPA and the related regulations

determine the privacy interests at stake. While tediously detailed, these regulations appear to

have thoroughly considered and resolved the privacy concerns expressed by the hospital and the

court. 

Section 164.502, which sets forth the general rules for the use and disclosure of

“protected health information,” provides that “[a] covered entity may not use or disclose
No. 04-1379 Page 2

protected health information, except as permitted or required by this subpart or by subpart C of

part 160 of this subchapter.” 45 C.F.R. § 164.502(a). Before looking to the various exceptions,

the initial question is whether the information sought in this case is “protected health

information.” The regulations define “protected health information” as “individually identifiable

health information.” 45 C.F.R. § 160.103. Both Congress and HHS define “individually

identifiable health information” as information that “is created or received by a health care

provider, health plan, employer, or health care clearinghouse; and relates to the past, present, or

future physical or mental health or condition of an individual, the provision of health care to an

individual, or the past, present, or future payment for the provision of health care to an

individual, and–(i) identifies the individual; or (ii) with respect to which there is a reasonable

basis to believe the information can be used to identify the individual.” 42 U.S.C. 1320d(6); 45

C.F.R. § 160.103 (emphasis added).

In this case, the government seeks only redacted medical records and agrees that all

identifying information may be removed before Northwestern makes the records available for its

review. Because the records will be redacted, they will not identify the individual. Nor is there a

reasonable basis to believe that the information can be used to identify the individual. Section

164.514(b) confirms the latter conclusion. Section 164.514(b)(2)(i) sets forth specific identifiers

which, if removed, “de-identify,” the health records: 

(A) Names;

(B) All geographic subdivisions smaller than a State, including street address, city,

county, precinct, zip code, and their equivalent geocodes, except for the initial three digits

of a zip code if, according to the current publicly available data from the Bureau of the Census:

(1) The geographic unit formed by combining all zip codes with the same three
No. 04-1379 Page 3

1

 The government does not object to the removal of these identifiers and in fact has

consented to redaction beyond that required by Section 164.514(b)(2)(i), for instance by agreeing

that Northwestern may delete the state of residence. The fact that the regulations allow the

disclosure of the patient’s state disproves Northwestern’s assertion that, because the Hospital is

located in Chicago, the patients could be identified since they would be assumed to be from

Illinois. Such an assumption is unreasonable given that HIPPA allows for that very disclosure,

while still treating the records as de-identified. But in any event, the government does not

request that information.

initial digits contains more than 20,000 people; and

(2) The initial three digits of a zip code for all such geographic units containing

20,000 or fewer people is changed to 000.

(C) All elements of dates (except year) for dates directly related to an individual,

including birth date, admission date, discharge date, date of death; and all ages over 89

and all elements of dates (including year) indicative of such age, except that such ages

and elements may be aggregated into a single category of age 90 or older;

(D) Telephone numbers;

(E) Fax numbers;

(F) Electronic mail addresses;

(G) Social security numbers;

(H) Medical record numbers;

(I) Health plan beneficiary numbers;

(J) Account numbers;

(K) Certificate/license numbers;

(L) Vehicle identifiers and serial numbers, including license plate numbers;

(M) Device identifiers and serial numbers;

(N) Web Universal Resource Locators (URLs);

(O) Internet Protocol (IP) address numbers;

(P) Biometric identifiers, including finger and voice prints;

(Q) Full face photographic images and any comparable images; and

(R) Any other unique identifying number, characteristic, or code, except as permitted by

paragraph (c) of this section;

45 C.F.R. § 164.514(b)(2)(i).

Once these identifiers are redacted, the medical records are no longer “individually

identifiable health information.” 45 C.F.R. § 164.514(a).1 Under HIPPA and the implementing

regulations, there is no protected privacy interest in non-identifiable health information. Again,
No. 04-1379 Page 4

2

 As the court also recognizes, the government did not need a court order in this case

because it obtained a protective order securing the confidentiality of the redacted records. 

Opinion at 3. Thus, the government complied with the privacy protections established by HIPPA

in three independent ways: by obtaining a court order; by obtaining a protective order; and by

seeking only redacted records. 

the regulations confirm this conclusion. 45 C.F.R. § 164.502(d)(2) provides: 

Uses and disclosures of de-identified information. Health information that meets

the standard and implementation specifications for de-identification under

§ 164.514(a) and (b) is considered not to be individually identifiable health

information, i.e., de-identified. The requirements of this subpart do not apply to

information that has been de-identified in accordance with the applicable

requirements of § 164.514 . . . .

45 C.F.R. § 164.502(d)(2) (emphasis added).

Because the government seeks only redacted records that are not individually identifiable,

under HIPPA there is no privacy interest in those records. However, even if the records were

“individually identifiable,” they would still be subject to the general privacy rules governing use

and disclosure of protected health information set forth in § 164.502. As noted above, the

privacy protection afforded in that section provides several exceptions. 45 C.F.R. § 164.502(a)

(“A covered entity may not use or disclose protected health information, except as permitted or

required by this subpart or by subpart C of part 160 of this subchapter.”) (emphasis added). Of

relevance here is 45 C.F.R. 164.512(e)(1)(i), which authorizes the disclosure of protected health

information pursuant to a court order. In this case, the government obtained a court order

authorizing the disclosure of the medical records. Under the regulations, such an order negates

any need to redact identifying information.2 45 C.F.R. § 164.512(e)(1)(i). Yet, as the

government stressed at oral argument, it has no need for, nor desire to know, the individual
No. 04-1379 Page 5

identities of the patients. Therefore, it is only seeking the relevant redacted medical records. 

Such redacted records are afforded no privacy protection under HIPPA, logically so because the

redacted records have no identifiably private information to expose. And although Illinois law

has adopted an expansive view of privilege that includes redacted medical records, as the court

recognizes, Illinois law does not govern this question.

That should end the inquiry. But instead the court resurrects the privacy question through

the “undue burden” language of Fed. R. Civ. P. 45(c)(3)(A)(iv). Rule 45(c)(3)(A)(iv) provides

that a court may quash or modify a subpoena if it “subjects a person to undue burden.” Fed. R.

Civ. P. 45(c)(3)(A)(iv). In the court’s view, compliance with the subpoena would impose an

undue burden (i.e. “potential psychological cost”) on the women whose redacted records were

subpoenaed. Such an undue burden exists, according to the court, because the potential loss of

privacy outweighs the probative value of the medical records. See opinion at 6 (stating that the

Illinois district court’s finding that the “potential loss of privacy that would ensue were these

medical records used in a case in which the patient was not a party . . . outweighs the loss to the

government through non-disclosure” is “solidly based”). This conclusion is wrong on several

levels. 

Initially, to reiterate, HIPPA and the implementing regulations recognize that there is no

loss of privacy where the medical records are redacted (or in HIPPA jargon, “de-identified”). 

Nor is it reasonable to believe that the unidentified 45 women have “acquaintances . . . who will

put two and two together, ‘out’ the 45 women, and thereby expose them to threats, humiliation,

and obloquy.” Opinion at 9. In fact, there is no reason to believe that the women themselves
No. 04-1379 Page 6

3

 Even if some are aware of the subpoena, there is nothing in the record to support the

conclusion that “[t]he women whose records these are do not want them collected and examined

by the Department of Justice and presented in evidence in the New York trial.” Opinion at 6.

4

 Notwithstanding the court’s discussion of the notice procedures of HIPPA, see opinion

at 4, HIPPA does not require notice where a court order authorizes disclosure, 45 C.F.R.

§ 164.512(e)(1), where there is a protective order in place, 45 C.F.R. § 164.512(e)(1)(ii)(B), or

where the records are redacted, 45 C.F.R. § 164.502(d)(2).

have any idea that their records are among the few sought by the government in this case.3 But

even if they knew,4 no one else ever would, because all of the information that could reasonably

be used to identify them will be redacted, see 45 C.F.R. § 164.514(b)(2)(i), and none of the

information—not even the redacted non-identifying information—will ever be made public,

much less paraded in court or placed on the Internet within the reach of “skillful Googlers.” 

Opinion at 9. That is guaranteed by the additional security of the protective order entered in this

case in the Southern District of New York. See, e.g., Reproductive Serv., Inc. v. Walker, 439

U.S. 1307, 1308 (1978) (Brennan, J., in chambers) (dissolving stay of subpoena seeking abortion

records of non-party patients on condition that patient names were redacted and parties agreed to

a protective order to ensure privacy of all patients). 

The court’s erroneous conclusion that a privacy interest exists in the redacted documents

leads to the unnecessary attempt to assess the probative value of the evidence. Notably, the

district court (Judge Kocoras) did not reach the undue burden of compliance issue of Fed. R. Civ.

P. 45(c)(3)(A)(iv). In the interest of time, with the trial date at hand, the court bypassed a remand

and accepted the district court’s findings on the privilege issue and applied them to the undue

burden question. It then in effect agrees with the district court that there is little if any probative
No. 04-1379 Page 7

value in the requested documents. Based on the complaint, Dr. Hammond’s declaration, the

congressional findings when it passed the law, and the arguments made by the government and

the hospital (both very limited since privilege, not probative value, was the issue argued below),

there is significant probative value. But that is not for us to decide, as the probative value of the

evidence has already been determined. District Court Judge Casey, who is presiding over the

underlying case, believes the information is relevant, so much so, that he has indicated that if it is

not produced, he would consider lifting the stay and dismissing the case (or at least dismissing

Dr. Hammond from the case). This should also make clear that Judge Casey believes the

evidence is not just relevant “in the attenuated sense,” opinion at 11, but highly probative to the

difficult question he will face starting on March 29. If any deference is owed, it is to the

presiding judge—the judge who handled this case pre-trial and who knows the arguments

presented by both sides, and the judge who will need all (non-privileged) relevant evidence

available to allow him to make the necessary factual findings to determine this difficult and

contentious constitutional case. 

However, while recognizing that “[t]he merits of the dispute are for determination at

trial,” opinion at 7, the court nonetheless interjects its own theory of the case and its own

judgment of the probative value of the evidence. For instance, the court states: “What the

government would like to show, in refutation of Dr. Hammond’s impending testimony, is that D

& E is always an adequate alternative, from the standpoint of a pregnant woman’s health, to the

D & X procedure. The government has failed to explain how the record of a D & X abortion

would show this.” Opinion at 11. But the government’s document request was not so structured:
No. 04-1379 Page 8

The government did not ask for the records of the D & X abortions identified by Dr. Hammond,

but rather requested the redacted medical records of patients who had abortions—both the D & E

and D & X variety—for the reasons asserted by Dr. Hammond as justifying a partial-birth

abortion. For instance, Dr. Hammond stated that he sometimes performed abortions for women

to protect their health after they learned that “their fetuses have anomalies that are often quite

severe.” Declaration ¶ 4. The government requested the patient records for 2003 of any women

who had an abortion during their 19th or 20th week of pregnancy, (whether partial-birth or D & E)

for that reason. Interrogatories 1 At 3; Document Request at 7. As the government explained at

oral argument, those records are highly relevant to the question of medical necessity because, if

they show that Dr. Hammond did not regularly perform partial-birth abortions under those

circumstances, that would demonstrate that Dr. Hammond does not believe a partial-birth

abortion is necessary to protect the women’s health. Of course, there could be some variations in

the medical conditions of the individual cases that explain why Dr. Hammond used a different

method, but Dr. Hammond remembers few, if any, of the circumstances surrounding the

abortions. Opinion at 8. Thus, the only way the government (and the trial judge) can assess Dr.

Hammond’s contention that partial-birth abortions are medically necessary to protect the

women’s health is to review the medical records of the patients with the conditions that Dr.

Hammond referenced. 

The court rejects this theory, stating: “But such information would be unlikely to be

found in Hammond’s records in view of his strongly expressed preference for using the D & X

method on patients in fragile health. It would be much more likely to be found in the records, not
No. 04-1379 Page 9

sought by the government, of physicians who perform D & E rather than D & X abortions on

such women.” Opinion at 7. But that is exactly the point: The government does not know what

is to be found in Dr. Hammond’s medical records. It only knows what could be found

there—evidence that, notwithstanding Dr. Hammond’s declaration that he strongly prefers using

the D & X method of abortion on patients in fragile health, in practice, he does not use that

procedure. Such evidence would be highly probative, as the court itself implies by recognizing it

“would be unlikely to be found in Hammond’s records in view of his strongly expressed

preference for using the D & X method.” 

In fact, the relevance here cannot be overstated: Congress made explicit findings that a

partial-birth abortion is never medically necessary to protect a women’s health. Yet, Dr.

Hammond claims Congress is wrong. The court concisely lays out Dr. Hammond’s argument: In

a D & X (partial-birth) abortion, “the fetus is destroyed after the lower extremities, and

sometimes the torso, have emerged from the womb and only the head remains inside,” and this,

according to Dr. Hammond is safer then the D & E procedure, where “the fetus is destroyed

while it is still entirely within the womb . . . . “ Opinion at 7. Dr. Hammond seeks to testify

accordingly, and it is therefore imperative that the government be able to determine the veracity

of his testimony. There is no better way than by determining if Dr. Hammond’s actual practice

supports his testimony. And this is not a question only of impeachment, but rather concerns the

heart of this case.

Moreover, as the government explained during oral argument, the medical records are

highly relevant to its case because its experts must be able to review Dr. Hammond’s files to
No. 04-1379 Page 10

5

 Northwestern also acknowledged another point of relevancy during questioning: When

asked whether the records could possibly demonstrate that the woman’s life—and not just her

health—was at risk, Northwestern’s attorney responded, “yes, but that would help the other

side.” This case is not about sides, but about the document request, and providing the district

court with the evidence it needs to resolve the constitutional question before it.

determine whether, in their expert opinion, a D & X procedure was the most appropriate

procedure, as Dr. Hammond claims. The court recognizes that “[t]he need for a health exception

to the ban in the Partial-Birth Abortion Ban Act will pivot on the clash of expert witnesses in the

New York trial.” Opinion at 13. Yet, the court refuses to recognize the importance of the

redacted records to the government’s case, even after the government explained the need for its

experts to review the files to form independent expert opinions.

The medical records are also highly relevant to a second congressional finding, namely,

that a “partial-birth abortion poses serious risks to the health of a woman undergoing the

procedure.” 117 Stat. 1201. Congress detailed numerous risks it found posed by partial-birth

abortions. Although the government did not point this out during oral argument, Northwestern’s

attorney alerted the court to the fact that the medical records will show whether there were any

complications from the abortion, and this evidence is highly probative to the underlying

constitutional challenge.5 

The court also questions whether the government sincerely wants to determine “whether

D & X abortions are ever medically indicated,” because the government did not seek summary

statistics of all circumstances in which such abortions are performed. Opinion at 9. But as the

government pointed out at oral argument, it was trying to limit the burden on Northwestern by
No. 04-1379 Page 11

6

 The court also charges the government with being evasive on the question of the

probative value of the medical documents. Opinion at 7. It is true that the government’s main

focus was not on the probative value of the medical records, but that is neither surprising nor

confining its document request to those specific situations where Dr. Hammond claimed a partial

birth abortion was necessary to preserve the mother’s health. See Fed. R. Civ. P. 45(c)(1) (“A

party or attorney responsible for the issuance and service of a subpoena shall take reasonable

steps to avoid imposing undue burden or expense on a person subject to that subpoena.”). And it

succeeded, maybe even better than the government had hoped: During oral argument, the

government learned for the first time that there are only 45 records that satisfy its document

request. Given that Dr. Hammond stated in his declaration that he performs, teaches or

supervises about 300 abortions a year, and that the government sought the records for a two- to

three-year time frame, it probably surprised the government to learn that there were only 45

relevant records, with the rest apparently unrelated to the mother’s or fetus’s health. 

In any event, the limited scope of the document request, and the government’s agreement

to redact the records—something not required by HIPPA—if anything, refutes any questioning of

the government’s motives or the court’s implication that the government is on a fishing

expedition. Opinion at 12. Although contradictory, the court also chastises the government for

not asking for enough records, implying that since the government did not ask for all relevant

documents, the documents it did request were somehow less than relevant. Granted, there were

many more relevant records that the government did not seek, but the government should not be

impugned for prudently limiting its document request to those few medical records Dr.

Hammond directly referenced.6
No. 04-1379 Page 12

nefarious, given the arguments below and the district court’s ruling. The district court in this

case ruled that Illinois privilege law governed and not HIPPA. The question of the relevance and

probative value of the documents was not central to the question of whether Illinois privilege law

applied. This court appropriately reversed the district court on the privilege issue without

delving into the question of relevance. Thus, it is not surprising that the government’s opening

brief did not focus on the relevancy of the documents. Moreover, although Northwestern argued

below that the documents were not relevant, it did so in the context of arguing for a federal

common law doctor-patient privilege. On appeal, the government did not need to argue

relevancy to address that legal issue, and in fact, this court again appropriately rejected the idea

of a federal common law privilege without addressing the question of relevance. Relevance only

became relevant once the court discounted the import of HIPPA de-identification and looked to a

balancing test under Rule 45(c)(3)(A)(iv). Again, that the government’s opening brief did not

focus on this question is not surprising given that Northwestern’s Rule 45(c)(3)(A)(iv) undue

burden argument below was limited to three short paragraphs, and the only tangential reference

to relevance in its opening brief came from this sentence: “The Attorney General’s subpoena is

an unacceptable intrusion into the privacy of the Hospital’s patients, promising no significant

contribution to the ascertainment of truth in NAF v. Ashcroft.” Memorandum in Support of

Northwestern Memorial Hospital’s Motion to Quash Subpoena at 20. After Northwestern

changed direction on appeal, to argue that the production of the records constituted an undue

burden because the records were not relevant, the government responded at length in its reply

brief. See Appellant’s Reply Brief at 8 - 11. At oral argument, the government also elaborated

on the relevance of the documents, not in a vague or evasive way, but by specifically

demonstrating that the medical records are both relevant and highly probative of the issues in the

underlying case. See supra at 8 - 10.

That brings us back to the question of undue burden, which, along with HIPPA, should

have been the focus of the narrow question before the district court and this court in this case. 

Under Rule 45, a court may quash a subpoena where it creates an undue burden. There is no

such burden in this case because HIPPA establishes that there is no privacy interest in redacted

records and those records are highly relevant to the constitutional challenge to the Partial Birth

Abortion Ban Act. The only burden identified by the court seems to be a “potential

psychological cost.” Opinion at 7. Even assuming that is the kind of “burden” Rule 45
No. 04-1379 Page 13

7

 Northwestern does not claim that it is an undue burden to comply with the subpoena

because it is too costly, difficult or time consuming to produce the redacted records, only that it

may negatively impact its reputation with past and future patients. The court agrees, calling it a

“potential cost in lost goodwill,” opinion at 11, because Northwestern “will lose the confidence

of its patients, and persons with sensitive medical conditions may be inclined to turn elsewhere

for medical treatment.” Opinion at 10. However, this is not an authentic “cost,” because the

same federal regulations apply equally to all hospitals. These regulations put all hospitals on the

same footing, thus negating any basis for a patient rejecting a hospital’s care because a federal

court orders the production of redacted records pursuant to a federal regulatory standard. 

contemplates, reliance on that as a burden in effect creates a privilege where none exists.7

Finally, contrary to the court’s conclusion, quashing the subpoena in this case does come

at a “substantial cost to federal substantive and procedural policy.” The court’s ruling may well

be the death knell for Dr. Hammond’s claim, as the district court made clear that it believed the

records relevant and that it would consider dismissing the case if the records were not produced. 

Given that the government cannot adequately cross-examine Dr. Hammond, the district court

would be well within its rights to bar Dr. Hammond’s testimony, which will not only harm his

case, but also the other plaintiffs’. The court’s decision also comes at a substantial cost to the

federal policy adopted by HIPPA. Lastly, and most significantly, it comes at a cost to the truth of

Congress’ findings that a partial-birth abortion is never necessary to protect a woman’s health

and poses significant health risks, and to the constitutionality of such a law. For these and the

foregoing reasons, I would enforce the subpoena to produce the designated records.