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