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
2 No. 04-1379

argument, and now accelerate our decision, in view of the

pressures of time discussed later in the opinion.

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 adminis-
No. 04-1379 3

trative 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 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, 782 N.E.2d 237, 246-47 (Ill. 2002);

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
4 No. 04-1379

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 state-law 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 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 hospitalpatient) privilege. Rule 501 in terms makes federal common

law the source of any privileges in federal-question suits
No. 04-1379 5

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 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
6 No. 04-1379

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-by-case 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).

The district court did not reach a further ground urged by

the 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
No. 04-1379 7

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 government’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
8 No. 04-1379

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, “weigh[ed the] competing hard-
No. 04-1379 9

ships.” 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
10 No. 04-1379

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 would be

no hardship to either the hospital or the patients from

compliance. The argument 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 PartialBirth 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
No. 04-1379 11

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

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
12 No. 04-1379

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 the records of 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 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
No. 04-1379 13

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 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, the records would have

had to be disclosed to the government under Fed. R. Civ. P.
14 No. 04-1379

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), vacated, 531

U.S. 1271 (2000); Planned Parenthood of Wisconsin v. Doyle,

162 F.3d 463 (7th Cir. 1998); Planned Parenthood of 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);
No. 04-1379 15

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 under the name

Planned Parenthood of Central New Jersey v. Farmer, 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, 849-50 (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 medical experts’ patient records were used to im-
16 No. 04-1379

peach the expert (Langley v. Coughlin, No. 84 Civ. 5431 (LBS),

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 lateterm 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.
No. 04-1379 17

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 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 by 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.
18 No. 04-1379

MANION, concurring in part, dissenting in part. I agree

with the court that HIPAA 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-

4. 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

4-6. 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

HIPAA, Congress recognized a privacy interest only in

“individually identifiable medical records” and not redacted medical records, and HIPAA 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 eliminate 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 HIPAA,

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

Note). Therefore, HIPAA 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. 
No. 04-1379 19

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

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,
20 No. 04-1379

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 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;
No. 04-1379 21

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 HIPAA allows for that very disclosure, while still

treating the records as de-identified. But in any event, the

government does not request that information.

(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 HIPAA and the imple--

menting regulations, there is no protected privacy interest

in non-identifiable health information. Again, 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
22 No. 04-1379

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 HIPAA in three independent ways: by obtaining a

court order; by obtaining a protective order; and by seeking only

redacted records.

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 HIPAA 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 identities of the patients.

Therefore, it is only seeking the relevant redacted medical

records. Such redacted records are afforded no privacy

protection under HIPAA, logically so because the redacted
No. 04-1379 23

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 7

(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, HIPAA and the implementing

regulations recognize that there is no loss of privacy where

the medical records are redacted (or in HIPAA jargon, “deidentified”). 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 11.

In fact, there is no reason to believe that the women themselves have any idea that their records are among the few

sought by the government in this case. But even if they
24 No. 04-1379

3 Notwithstanding the court’s discussion of the notice procedures

of HIPAA, see opinion at 5, HIPAA 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).

knew,3 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 11. 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 bypasses a remand and accepts the

district court’s findings on the privilege issue and applies

them to the undue burden question. It then in effect agrees

with the district court that there is little if any probative

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 priv-
No. 04-1379 25

ilege, 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 13, 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 13, 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 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.”

Opinion at 13-14. But the government’s document request

was not so structured: 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.
26 No. 04-1379

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 14. 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,

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.” Opinion at 8. 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
No. 04-1379 27

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 given 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 was 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 13. 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 determine whether, in their expert opinion, a D & X

procedure was the most appropriate procedure, as Dr.

Hammond claims. The court recognizes that the need for a

health exception to the ban in the Partial-Birth Abortion Ban

Act “will pivot on the clash of expert witnesses at the New

York trial, . . . .” Opinion at 17. Yet, the court refuses to

recognize the importance of the redacted records to the
28 No. 04-1379

4 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.

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.4

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 16. But as the government pointed out at oral argument, it was trying to limit the

burden on Northwestern by 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
No. 04-1379 29

5 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 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 HIPAA. The question of

the relevance and probative value of the documents was not

(continued...)

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 HIPAA—if anything, refute any

questioning of the government’s motives or the court’s

implication that the government is on a fishing expedition.

Opinion at 14. 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.5
30 No. 04-1379

(...continued)

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 doctorpatient 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

HIPAA 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 26-29.

That brings us back to the question of undue burden,

which, along with HIPAA, 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
No. 04-1379 31

6 Northwestern does not claim that it is an undue burden to

comply with the subpoena because it is too costly, difficult or timeconsuming 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 13, 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 12.

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.

in this case because HIPAA 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 13. Even assuming that is the kind of “burden” Rule 45

contemplates, reliance on that as a burden in effect creates

a privilege where none exists.6

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

HIPAA. Lastly, and most significantly, it comes at a cost to
32 No. 04-1379

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.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-6-04