## Facts

- The United States sought, by subpoena, medical records for approximately 45 patients who underwent late-term abortion procedures (D&X / “intact D&E”) performed by a physician at Northwestern Memorial Hospital.
- The records were requested for use in federal litigation challenging the constitutionality of the Partial-Birth Abortion Ban Act of 2003, 18 U.S.C. § 1531, pending in the Southern District of New York.
- Northwestern Memorial Hospital was not a party to the New York litigation.
- The government agreed the hospital could redact patient-identifying information before producing the records.
- The hospital moved in the Northern District of Illinois to quash the subpoena.
- The district court quashed the subpoena, reasoning that HIPAA regulations and Illinois privacy protections barred production.
- The Attorney General appealed to the Seventh Circuit, which expedited consideration due to timing constraints.

## Issues

1. Whether HIPAA and more-protective Illinois confidentiality rules barred disclosure of redacted medical records in a federal-question case.
2. If not barred, whether the subpoena should be quashed under Federal Rule of Civil Procedure 45 as imposing an undue burden in light of privacy harms, nonparty status, and limited evidentiary value.

## Decision

- The Seventh Circuit affirmed the order quashing the subpoena.
- The court held HIPAA does not create a federal physician–patient privilege and does not import state evidentiary privileges into federal-question litigation.
- The court declined to recognize a new federal common-law privilege specifically for abortion-related medical records.
- The court held the subpoena imposed an undue burden under Rule 45 because the asserted benefits were weak and speculative, while privacy and institutional harms from compelled disclosure of sensitive abortion records were substantial, even with redaction.

## Legal Principles

- HIPAA’s privacy regulations supply conditions and procedures for lawful disclosures in litigation; they do not create an evidentiary privilege barring discovery in federal-question cases.
- State confidentiality or privilege rules do not apply of their own force in federal-question litigation; they govern only when federal law adopts them.
- Under Federal Rule of Civil Procedure 45, courts may quash subpoenas that impose an undue burden, and the analysis requires balancing likely evidentiary value against burdens, including privacy harms.
- Nonparty status weighs heavily against compelled production, particularly where the information sought is highly sensitive and the requesting party’s showing of need is vague or marginal.
- Redaction does not eliminate privacy burdens where the nature of the information and contextual details create a meaningful risk of re-identification and associated personal and institutional harms.

## Conclusion

The Seventh Circuit upheld quashing a subpoena for redacted late-term abortion records from a nonparty hospital, ruling that HIPAA creates no physician–patient privilege and that, on balance, Rule 45’s undue-burden standard required protection of sensitive medical privacy where the government’s demonstrated need was limited.


Nw. Mem'l Hosp. v. Ashcroft, 362 F.3d 923 (7th Cir. 2004)