An Arizona clinic filed suit last week to stop the state’s attorney general from demanding the names and medical records of patients who have received abortion care and have donated fetal tissue.
A 55-page application for preliminary injunction filed November 17 in Maricopa County Superior Court asked the court to block an August subpoena and a September civil investigative demand issued by the office of Arizona Attorney General Mark Brnovich.
Brnovich’s office is demanding that Camelback Family Planning turn over medical documents about the clinic’s procurement and disposal of fetal tissue. The subpoena seeks to compel clinic director Dr. Gabrielle Goodrick to testify about patient records.
“What’s at stake is the privacy of patients—all patients—in the records and details of their treatments,” Jean-Jacques Cabou, an attorney representing the clinic, told Rewire by email. “If the Attorney General can subpoena the records of women who have had an abortion, there is nothing to stop him from subpoenaing other medical records. This is incredibly troubling.”
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Cabou argues that the attorney general’s office is conducting its investigation for an “improper purpose,” due to an “animus” toward the constitutional right to abortion care. The subpoena is also invalid, according to Cabou, because it violates federal and state privacy laws, doctor-patient privilege, and the federal Health Insurance Portability and Accountability Act.
Mia Garcia, spokesperson for the attorney general’s office, told Rewire that the office has no comment.
Brnovich’s office contends that it is using its authority to investigate possible violations of the Consumer Fraud Act, according to the clinic’s complaint.
The Phoenix clinic’s court filing notes that this is the second time Brnovich’s office has sought medical records related to fetal tissue donations from the facility. Camelback Family Planning has provided health care to women for nearly 20 years, including abortion care.
The clinic already produced documents about donated fetal tissue after an investigative demand by the attorney general’s office in late 2015, according to the complaint. The clinic agreed to hand over redacted patient-consent forms indicating the clinic had provided fetal tissue for research on seven or fewer occasions over a few months in 2015.
In a signed statement filed with the complaint, Dr. Goodrick said the clinic had not been involved in “donating, selling, or otherwise surrendering fetal organs or tissue for any purpose other than its immediate destruction” since August 2015.
That was the month Republican Gov. Doug Ducey, with Brnovich’s approval, pushed through an “emergency” state rule requiring abortion clinics to report to state health officials how they dispose of aborted fetal remains, as the Arizona Republic reported.
The August 2015 rule came one month after the release of the first in a string of widely discredited anti-abortion videos that were filmed and edited to give the impression that Planned Parenthood affiliates unlawfully sold fetal tissue that patients had donated to science.
Both Arizona’s legislative and executive branches are headed by anti-choice GOP politicians. The governor this year signed legislation prohibiting fetal tissue donations or fetal tissue research if the tissue was produced during abortion care. The law also states that physician-patient privilege “does not prevent the production of documents or records relevant to an investigation” of fetal tissue procedure, opening the door for state investigators to go after patient records.
Camelback Family Planning’s application for a preliminary injunction notes Brnovich’s political motivations as a self-proclaimed “pro-life” Republican. Brnovich, according to the filing, has staffed his office with former executives and litigators from the Center for Arizona Policy, the local arm of the anti-choice Family Research Council, and from Alliance Defending Freedom, a legal nonprofit that frequently defends anti-choice groups.
According to the court filing, “the Attorney General will not deviate from its position that it is entitled to learn the identities of certain of Plaintiffs’ patients, to review the unredacted medical records of those patients, and to examine Dr. Goodrick under oath about those patients.”
The complaint goes on to argue that the attorney general is considering the health-care clinic a “company” and its patients “consumers,” in order to claim that the investigation is looking for violations of the Consumer Fraud Act.
The attorney general’s office, according to the plaintiff’s complaint, “blithely insists that it is entitled to identify and examine the records of these patients because ‘a company simply cannot conceal from law enforcement the identities of the consumers involved in a possible Consumer Fraud Act violation by the company.'”
Cabou said a date for oral arguments has not yet been set.