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The New York-Presbyterian Hospital has asked the 2nd U.S. Circuit Court of Appeals to stay a judge’s order directing it to turn over the medical records of scores of women who have had abortions. Southern District Judge Richard Conway Casey, who is presiding over a trial on the constitutionality of the Partial Birth Abortion Act of 2003, found the hospital in contempt late Tuesday for refusing to turn over the records, which the hospital is protecting because of concerns about patient confidentiality. The appeals court had heard oral arguments on Tuesday morning on the confidentiality issue and whether it had jurisdiction to consider a contempt finding that had yet to be entered. Because Judge Casey had not found the hospital in contempt, the circuit passed the case back to him to make a finding. On Tuesday night, he informed the hospital’s lead lawyer, James Frank of Phillips Nizer, that his client was in contempt. The records are being sought for the patients of two doctors who have testified for the plaintiffs in the trial — one of three trials occurring simultaneously in federal courts on the constitutionality of the law against “partial-birth” abortions. Closing arguments have been heard in federal courts in San Francisco and Lincoln, Neb. Parties are awaiting rulings in those cases. Closing arguments have yet to be heard in the New York case. Neither the government nor the lawyers for seven doctors challenging the act in New York would comment on the records dispute. Plaintiffs lawyers have argued before Casey that the records have little or no probative value and are therefore not needed to resolve the case. On March 18, Casey refused to grant summary judgment for the plaintiff doctors, ruling that “a genuine issue of material fact exists as to whether a partial-birth abortion is ever medically necessary to protect a woman’s health.” The trial began on March 29 with A. Stephen Hut of Wilmer Cutler Pickering, representing the plaintiff doctors, arguing that the act should be ruled unconstitutional because it is “hopelessly unclear in defining the acts that are prohibited.” Arguing for the government, Assistant U.S. Attorney Sean Lane told Judge Casey that what the law’s defenders refer to as partial-birth abortion, in which the fetus is destroyed while being brought through the birth canal, is an “inhumane and gruesome procedure.” Tuesday afternoon, Casey and lawyers were waiting for formal word on the jurisdictional issue from a 2nd Circuit panel of Judges Sonia Sotomayor, Richard Sack and Southern District Judge Lewis Kaplan, sitting by designation. Casey told the lawyers he would find the hospital in contempt and the matter could go back to the appeals court. As the attorneys waited in his courtroom, they discussed the dispute. Assistant U.S. Attorney Elizabeth Wolstein said, “The government has always believed the medical records subpoenaed are essential and the court has expressed the same view many times.” Wolstein said the circuit panel earlier that day had expressed concern that Casey’s findings on the balancing between the importance of the medical records and the privacy interests of the patients were not extensive enough. The government argues, and Casey agreed, that the judge had thoroughly weighed the conflicting interests from the beginning. “We strove mightily to balance the competing interests … and at all times we did everything we could think of to protect the privacy interests of women patients at the hospital,” Judge Casey said. He said the medical records were needed to “level the playing field” in the trial.

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