Bear Left!

Does Freedom Include Privacy?
Paul Corrigan

1 July 2001

"Does freedom include privacy?" President Clinton posed this questioned during a speech on medical privacy at the Department of Health and Human Services in Washington, D.C., in December of 2000, just prior to leaving office. Quoting Justice Brandeis, Clinton stated that privacy was "the right most valued by a civilized people." You might think that conservatives that champion individual freedom would agree with President Clinton on this point and that the "compassionate conservatism" that President Bush campaigned on would protect these principles. You would be wrong.

Bill Clinton understood invasion of privacy. Bill Clinton understood that Americans hold sacred the confidentiality of the doctor patient relationship. We put our trust in doctors and other health care professionals not only to advise and treat us in connection with our most personal medical and psychiatric needs, but also to keep such information confidential. Before leaving office, Clinton issued rules requiring that doctors and other health care professional and institutions get our consent before disclosing information from our medical records. On January 20, 2001, immediately upon taking office, President Bush issued a moratorium on the privacy rules. Bush then took political cover to delay it once again in February under a technicality.

George W. Bush understands that he represents the financial interests of individuals and corporations that prefer not to be deterred by silly things like freedom and privacy. Bush campaigned on a promise to protect the privacy of medical information. Of course, Bush's campaign left out the details. Sound familiar? A technicality delayed the implementation of the new privacy rules and Bush tried to use it to further delay and gut the rules adopted by Clinton.

On March 27th, Health and Human Services Secretary Tommy Thompson, speaking with forked tongue, stated near the end of the 60-day moratorium that the administration "would like to see the rule go into effect as soon as it possibly can." Meanwhile, the administration worked with lobbyists and a Republican Congress to gut the rules. In early April, the Bush administration announced it had concluded that the federal standards to protect the privacy of medical records were "unworkable" and needed to be revised but promised not to kill the rules.

In the face of public opinion polls that overwhelmingly supported privacy the Bush administration buckled. The administration agreed to "begin the process of implementing the patient privacy rule that will give patients greater access to their own medical records and more control over how their personal information is used." On April 12th, Secretary Thompson was sent out to spin Bush's political defeat into a victory speech:

I am pleased to announce that the President is taking a bold and definitive step to protect the rights of citizens to keep their medical records confidential.... This town has been debating patient privacy for the better part of a decade, and President Bush believes it is now time to act and protect patients.... As a result of President Bush's decisive action today, our citizens finally will have the peace of mind of knowing their health records are safe and protected.

Thompson's speech had a message for the lobbyists and house Republicans that opposed the bill and a caveat for supporters that believed the fight was won:

We will... begin the process of issuing guidelines on how this rule should be implemented. The guidelines will allow us to clarify some of the confusion regarding the impact this rule might have on health care delivery and access. And we will consider any necessary modifications that will ensure the quality of care does not suffer inadvertently from this rule.

Make no mistake. These privacy rules were made possible by mandates in legislation from 1996 when Clinton signed into law the Health Insurance Portability and Accounting Act (HIPAA) and by Clinton's executive order enacted just before he left office. Ralph Nader, the one-time consumer advocate, must have believed Bush's campaign promise. How else could he explain his comments that there was no appreciable difference between Clinton-Gore and Bush. Maybe Ralph will revert to his old self and speak out when Bush starts to issue "guidelines" that would gut one of the most sweeping pieces of pro-consumer executive orders in the history of our country.

Technology has helped lead the way to major medical advancements and has sped the flow of medical information that has greatly improved the lives of many Americans. Alas, technology has also made the information in these private records accessible to those that would violate our privacy for their own financial gain. Employers have had access to our medical records, including the prescription drugs we take, before they hire, fire and promote. Our medical records have been given to the marketers that invade our homes by telephone, mail, and over the Internet. We all live not in glass houses, but in houses with one-way mirrors looking in. Bush and the moneyed interests that support him are grifters and we are their marks. No amount of political spin can hide that fact. The fight to ensure that Bush administration does not undermine these privacy protections will continue.