Important updates below.
Chris Bowers has been on a Fascism project, documenting the statist behavior of Senator Inhofe and the "traitor" language tossed around at CPAC.
But this article in the New York Times makes me worry more than any of those:
"TOPEKA, Kan. (AP) -- Attorney General Phill Kline is seeking the complete medical records of nearly 90 women who received late-term abortions to search for evidence of crimes, according to court documents.
The secret investigation began in October..."
The rest of the article just gets worse. Go look. (Apologies if someone has diaried this already. More below the fold.)
"The clinics' brief said Kline had demanded their complete, unedited medical records for women who sought abortions at least 22 weeks into their pregnancies. Court papers did not identify the clinics. The records would include the patient's
name, medical history, details of her sex life, birth control practices and psychological profile. The clinics... say nearly 90 women would be affected...
"In their brief, the clinics' attorneys said a gag order prevents the clinics from even disclosing to patients that their records are being sought."
This whole court proceeding -- the AG's motion to gain access to the files, and the District Court ruling to allow it -- has been secret since October. The only unsecret part is the brief from the clinics' appeal, filed Tuesday. Had the clinics chosen not to appeal, the whole affair could have remained secret from everyone. Intimidate the clinics into not appealing and you ALREADY HAVE secret government findings of extremely personal information -- which I assume counts as fascism.
Any guesses as to the law the AG is violating everyone's civil liberties to enforce? The law that prohibits protects 15-year-olds from having sex. Surprised?
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Do we have a response?
As a matter of strategy, I'd like to see Democrats make an organized effort to push certain extreme ideas off the map. For instance, it would have been good to have targeted Jim DeMint (R-SC Sen), hung the National Sales Tax around his neck like an iron, and in defeating him, turned that idea into political poison. It's not just a Senate race, it's a really dangerous idea that you're fighting off.
Armando has been doing this with Gonzales and torture -- establishing it as a single-issue dealbreaker, and thus, one of only a few Truly Basic Principles.
It would be an achievement to bring this AG in Kansas down so forcefully, and with such clear reference to this one act of his, that we can make what he's doing outside the bounds of the acceptable... for good.
This is an AP article, so it should be carried in many papers. Could we manufacture that kind of outrage? Is the story big enough to get national attention? Should we spend capital trying? I don't know. I think maybe we should.
You could build a hell of a test case of what kinds of things the government is allowed to keep secret out of this.
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UPDATE: [5:42 Pacific Time]
The text of the article at NYTimes.com was revised at 5:42 PM Eastern, about an hour after I posted this. I don't have access to an original yet, and I'm still trying to figure out what the substance of the changes were. I'll post what I find.
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UPDATE: [7:15 Pacific Time]
Well, here's what I get for trying to break news.
The AP and the NYT have been updating this story all day. The version I was using (NYT ~1:30 PM Pacific Time), as well as at least one version on ABCNews (linked in comments) did not include the fact that late-term abortions are illegal in Kansas. Other versions, both earlier and later, did.
That changes the landscape somewhat. Earlier it appeared to me that the AG was asking for the records of a wide range of abortion seekers, of whom they expected some to be underage, and thus in violation of a Kansas law prohibiting any sex involving 15-year-olds. From these 90 records, they could then arrest the underage patients and their partners.
Instead, they are asking specifically for the records of underage patients, for the above purpose, and also specifically for the records of all patients who were beyond 22 weeks. Abortions after 22 weeks are illegal in Kansas "unless there is reason to believe it is needed to protect the mother's health." (AP 8:39 ET) AG Kline apparently wants to subject the medical judgements of the clinics to state scrutiny, because if there was no medical threat those abortions could potentially have been illegal under Kansas law.
The primary difference between these situations to my eyes is that when I wrote this, it appeared that the privacy of a wide range of patients was going to be violated -- secretly -- in a "fishing" expedition to find people guilty of underage sex. As it is, every record subpoena-ed corresponds to someone who has a specific possibility of being tied to a Kansas crime: either the patient had sex under the age of 16, or the patient had an abortion after 22 weeks, a stage of pregnancy at which the state has criminalized some actions and claims a right to scrutiny.
Strictly speaking, that makes the affair substantially less "fascist," in my eyes. Now, it remains true that subpoena-ing the records of young abortion-seeking girls as a way of "catching them" at underage sex is bizarre. It has a very chilling effect on what seems to be a legal procedure in Kansas -- what girl is going to get an abortion in Kansas if it means she'll be arrested for being pregnant? Particularly interesting is that she won't be arrested for giving birth, nor for walking around pregnant; only for going to the abortion clinic. I'm prepared to holler about that. And, the government claiming access to the entire medical file of women who get abortions after 22 weeks, without notifying them, is shaky as well; that is the focus of the story that is now in the third-priority slot of the New York Times. (Don't know how long that will last.)
The dispute over whether the government can seize these records to evaluate medical need is huge, obviously, but the New York Times is paying attention to that one. Whether or not the state can differentially prosecute teenage sex seems important to me, but not to any of the AP writers so far. The fact that the state could easily have done this all in secret, if the clinics had been persuaded not to appeal, seems most important to me; the AP writers are certainly mentioning the secrecy element, if not in exactly that light.
This, together with the ChoicePoint non-disclosure story (short version: hundreds of thousands of peoples' credit information was stolen, but the company that allowed the breach at first only notified California customers, because only California law compelled such notification), in which no notification at all would have been likely absent the California law, suggests to me that there are a lot of potential loopholes in disclosure of information. How many companies like ChoicePoint have found ways not to disclose? How many non-terrorism, non-national-security court findings stay entirely secret every year? Do we have a way of even knowing the scale of what we don't know? In these cases, whether it's the government reading through your sexual history, or your identity being stolen without you ever getting so much as a post-facto warning, what you don't know could be hurting you.