The Kansas Supreme Court ruled yesterday that a grand jury investigating abortion provider Dr. George Tiller cannot immediately access patients’ private medical records as part of the investigation. In order to subpoena patients’ records, the lower court must "undertake a number of steps before
determining what, if any, information can be disclosed to the grand jury." These protective steps include making specific findings about whether the medical records would be relevant to the case (the subpoena targeted even patients who had not been provided abortion care), ensuring that the grand jury is not conducting a "fishing expedition" based on malice or intention to harass, and balancing the court’s need for the information with the privacy rights of the Dr. Tiller’s patients.

The grand jury, which was convened by a citizen-initiated petition, "wants to get everything they can, and then decide if they can bring charges," says Suzanne Novak, staff attorney at the Center for Reproductive Rights, the organization representing the patients. "That’s not how our Constitution is structured. You can’t harass someone in the hopes that you’ll find something that’s wrong." Novak indicated that she thought application of the steps would show that there was no basis for accessing the medical records. "Certainly need does not outweigh the gross intrusion of privacy."

But "if
the court finds that the grand jury is justified in obtaining some of these records, there are a number of
protective steps that absolutely must be taken before those records are turned
over," says Bonnie Scott Jones, senior staff attorney at the Center. These protective steps including redacting all patient information and redacting all information not relevant to the investigation.