Patient photos on Internet test the courts

By Lorna Collier
Published May 15, 2002 (Chicago Tribune, Womanews)


Last June, a young woman undergoing an abortion at the Hope Clinic in Granite City, Ill., suffered complications--a tear to her uterus that required her to be taken to the hospital across the street.

As the woman, wrapped in sheets and bleeding in her wheelchair, was being moved from the clinic, an anti-abortion activist outside took her picture. At the entrance to the hospital, another activist, according to the woman, tried to pull off the sheets in which she was wrapped.

The next day, a photograph of the woman, along with her medical records and an account of the incident, revealing such identifying information as her age, height and weight, hometown and details about her 9-year-old child, were, according to court files, published on a Web site called "Missionaries to the Unborn," next to a photograph of Adolf Hitler.

The woman--known in court as Jane Doe--and Hope Clinic quickly filed suit, and a judge ordered the woman's picture and records removed from the Internet last August, while the case is pending.

Jane Doe's case is unusual due to the publication of her medical records. However, Internet publication of pictures of women seeking abortions, taken without consent by anti-abortion activists, is becoming more common. For instance, a 1-year-old site called Abortion Cams displays about 3,000 photos of women in 22 states, with four new states expected to be added within the next two months.

"This is a somewhat new tactic in terms of targeting women for harassment versus [targeting] providers," says Vicki Saporta, president and CEO of the National Abortion Federation.

Abortion providers and workers have been targeted by Internet sites such as the Nuremberg Files for several years. Planned Parenthood in Oregon sought to shut down the Nuremberg Files site, but in March 2001 an appeals court ruled the site was protected by the 1st Amendment (a ruling now under review). The Abortion Cams site, owned by Neal Horsley, who also runs the Nuremberg Files, started the same month as the court ruling.

Horsley's goal with Abortion Cams is to deter women from seeking abortions; on the site, he calls women who get abortions "homicidal mothers" who deserve punishment.

In addition to the Web site, Horsley is trying to start a cable-access TV show featuring video of women entering and leaving clinics, and says he has test-marketed the show in Boston and Portland, Ore.

Some legal experts say that taking photos of women in public is probably legal, even without their consent. "Generally speaking, there is no expectation of privacy when you are on a public street," says Leslie Ann Reis, director of the center for information technology and privacy law at John Marshall Law School in Chicago. "Taking photographs of people in plain view in a public place is legal."

But the Hope Clinic case may be the first legal test of the right of a Web site to publish a picture of a patient entering an abortion clinic.

The lawsuit asks the court to permanently bar the defendants--protesters Angela and Daniel Michael of Highland, Ill., and "Missionaries to the Unborn" Web site publisher Stephen Wetzel of Omaha--from publishing Jane Doe's photograph as well as her medical records on the Internet. It also asks the court to prohibit the Michaels from photographing any patients entering, leaving or on the grounds of the Hope Clinic. Also, the suit seeks more than $150,000 in damages from the Michaels and Wetzel; more than $50,000 additionally from the Michaels alone; and more than $350,000 from the hospital, St. Elizabeth Medical Center (now known as Gateway Regional Medical Center). Wetzel could not be reached for comment.

The attorney representing Jane Doe, Mark Levy of Edwardsville, Ill., agrees that taking a picture of a person in a public place for non-commercial use is usually legal. However, he says, "publishing a photograph for the purpose of disclosing a private medical fact is wrong."

Privacy an issue

"When you take a photo of a woman entering a medical facility that specializes in a procedure and then post a photo on a site to identify her with that procedure, then you're intruding on her privacy," he says.

Levy says this is especially true in the Jane Doe case, because the plaintiff was photographed inside the clinic's garage, being moved into a van for transport to the hospital.

Reis says there might be a cause of action against Web sites that publish photos if the photos are captioned in a way "that would connote something that's not true. Then it could be actionable under a privacy or defamation claim."

Women entering clinics might not be seeking abortions, but going there for other reasons, points out Saporta.

Victor Rosenblum, a professor of constitutional law at Northwestern University School of Law, also says the legality of publishing such pictures "depends on the circumstances under which the pictures have been taken in the first place." He notes that if the pictures are posted with "language that suggests falsities, then the element of defamation conceivably comes into play."

Rosenblum, who opposes abortion, disagrees personally with publishing abortion patients' photos online, calling the practice "counterproductive."

Similarly, the abortion protester, Daniel Michael, who took the picture of Jane Doe outside the Hope Clinic, also disavows Horsley and Abortion Cams, which is not accused in the lawsuit. Michael says he gave the photo of Jane Doe to the publisher of the "Missionaries to the Unborn" site to use as an example of a "botched abortion." But Michael says he does not usually take photos of patients.

"[Taking pictures and posting them on the Internet] is not going to stop abortion," Michael says. "We're out there to offer the girls help. We're not out there to harass them, expose them or make them feel bad."

Debra Knox Deiermann, an escort for the Hope Clinic, says she has observed protesters, including the Michaels, taking pictures of patients. She says at least four photos taken outside the Hope Clinic, not of Jane Doe, are posted on Horsley's Abortion Cams site.

A range of reactions

One of the photos shows Deiermann, along with a patient. When Deiermann saw the photos, she says she felt scared, even going so far as to change her hair color, fearing that "some crazy person" incited by the site might try to find her.

Deiermann says people she has escorted have had a range of reactions. "Sometimes they'll ask if it's legal for [the activists] to take their picture, and I have to say yes. Sometimes they don't say anything--they just want to get into the clinic as quickly as possible."

Horsley says he believes his campaign has been effective. "We have anecdotal evidence every week that people arrive at a clinic, see the cameras, and turn around and leave," says Horsley, 58, of Carrollton, Ga. "There are people who are deterred because of the knowledge that their shameful acts are going to be exposed."

Sally Burgess, executive director of the Hope Clinic, says she knows of no patients who have canceled abortions due to the protesters' actions.

"Most of the time, patients are angry about it," she says. "They know what's going on in their life, and why they made their choices, and to have people outside trying to intimidate them makes them quite angry."

Saporta agrees. "[Horsley] is not convincing anyone to make a different choice."

Saporta is hoping the appeals court will reverse the Nuremberg Files ruling.

"That decision will have an impact on legal remedies as they pertain to the Webcam tactics," says Saporta.

"We do believe that there is a violation of privacy and there's a legal basis to challenge it state by state. We intend to stop it."

In the meantime, no trial date has been set in the Hope Clinic lawsuit, while at the Abortion Cams site, new pictures taken outside abortion clinics across the country are added regularly.

Copyright © 2002, Lorna Collier

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