Anti-choice activist Jill Stanek recently published online the name and photo of a woman who passed away following a late abortion at the Maryland clinic of Dr. Leroy Carhart. The name and picture of the woman, I’ll call her Marie, along with information about her job, marriage, and pregnancy were soon all over the internet. Protesters plastered Marie’s picture on signs and marched outside Dr. Carhart’s clinic and held a “vigil” outside the emergency room where she was treated. Internet commentators characterized Marie’s husband, parents, and sister, who traveled with her from out-of-state for the three-day procedure, as everything from bad Catholics to killers. Beyond being immoral, unethical and unbelievably cruel, making the family’s tragedy public without their consent was likely illegal.
The Information Released
Stanek first revealed Marie’s identity in a post entitled “BREAKING: Carhart’s Victims Identified,” which continues to top Stanek’s list of most read posts. In the post, she explains that clinic protestors, “sidewalk counselors” as she calls them, tracked the visits of Marie and her family members, making “real-time annotations” about how she looked and when the family came and went. Stanek gives us down to the minute details. (“The family returned again on Wednesday,[…]staying nine hours, an extraordinary length of time. They left at 4:35 p.m.”)
Stanek’s scoop also included information about what time Marie was admitted to the emergency room, how many times she “coded,” what time she died, when Dr. Carhart called the hospital, how long a medical examiner looked at Marie’s file, etc. If Stanek’s information is accurate, it would seem to have been disclosed by someone working at the hospital—in violation of HIPAA, the federal law protecting patient privacy. Stanek says she received Marie’s name from an “impeccable informant.” This is presumably the same source who knew what happened at the hospital, though it could have been a protestor who took it upon herself to search obituaries for women who looked familiar, or someone else. Once Marie’s name was known, her obituary was found. Two protestors confirmed to Stanek that the woman pictured in it had been at the clinic.
For extra journalistic cred, Stanek links to Marie’s baby registry. It was then taken down, presumably by someone who doesn’t want strangers looking at it and has access to the account. One likely candidate would be the other half of the registered couple, Marie’s grieving husband, who I’ll call Kevin. Undeterred, Stanek posts an “UPDATE” with a screenshot of the registry. Stanek’s later posts include a picture of Marie with Kevin mostly cropped out, which she likely pulled from Pinterest since the four versions of it Stanek has saved online include Marie’s Pinterest username in the file names.
Stanek’s scoop is a big deal among anti-choicer bloggers and Twitter users who can now illustrate their claims that Dr. Carhart is a murderer with pictures of an extremely pretty young woman and the warning of a family’s very sad and very public story. They can use Marie’s name and the name the couple had chosen for their daughter as a rallying cry and Twitter hashtag. Lila Rose took advantage of the opportunity to go on Fox News.
Marie’s mother-in-law expressed to a reporter how upsetting the publicity has been and pleaded for her son to be allowed to mourn in peace. Instead, strangers are tweeting pictures of him with his dead wife, photographing him leaving her funeral, making accusations about their decisions, and “remembering” a woman he just lost and they never met.
Anti-choice bloggers have been critical, to put it nicely, of those who have written about the invasion of privacy. Some have pointed to the publicity surrounding the death of Savita Halappanavar, who died after being denied an abortion in Ireland, as justification for publishing Marie’s information. However, it was Savita Halappanavar’s family who brought her story to light, not a stranger who learned what happened through likely illegal means. Halappanavar’s husband demanded an investigation into her death and her parents want a reformed abortion law to be named after her.They have chosen to make their loss a catalyst for change. We have no information that Marie’s family believes she received poor medical care, but they were free to make her story public for that or any other reason. It should have been their decision to make.
Invasion of Privacy Claims
Many of the anti-choicers circulating information about Marie and her family seem to be under the impression that publishing anything about anyone is free speech and fair game. This is not the case. The vast majority of states recognize a common law, statutory, or state constitutional right to privacy. There are four main common law invasion of privacy torts (a tort is a wrong with a civil remedy, as opposed to a crime). They are: (1) unreasonable intrusion upon the seclusion of another, (2) appropriation of another’s name or likeness, (3) unreasonable publicity about another’s private life, and (4) publicity that unreasonably places another in a false light before the public. Whether one can sue for invasion of privacy will depend on the facts of the case and which state’s law will apply. Maryland, where the procedure and protests took place, recognizes all four privacy torts as well as intentional infliction of emotional distress.
Public Disclosure of Private Facts
Let’s begin with the third privacy tort, because it looks like the strongest claim based on what’s been reported. Someone who makes a public disclosure of private facts can be held liable if the disclosure would be highly offensive to a reasonable person and is not of legitimate concern to the public. A private individual’s medical information is generally not something the public is entitled to know about. That’s why we have a Federal law, HIPAA, which protects patient privacy.
In a 1995 Michigan case, Doe v. Mills, the court found that the fact that a woman had decided to have an abortion was not a matter of legitimate public concern: “We have no hesitancy in concluding that such an allegation involves a matter that a reasonable person would consider private. Indeed, abortion concerns matters of sexual relations and medical treatment, both of which are regarded as private matters.” The court explained that though the issue of abortion may be of legitimate public interest, the identity of a particular woman seeking one is a purely private concern.
In that case, the plaintiffs alleging invasion of privacy were women who had themselves sought abortions and then faced protesters who’d put their names on posters. Marie did not live to see her face on protestors’ signs. Claims for invasion of privacy do not survive the death of the person whose privacy was violated, so no one can sue on Marie’s behalf, but her family had their own privacy rights violated. In particular, her husband had details about his procreation made public, which is regarded by courts as a private matter.
Jill Stanek and her cohorts would probably argue the “newsworthiness exception.” Something to the effect of “It is newsworthy because Carhart is killing women! And babies!” (Let’s bracket Dr. Carhart’s defamation claims against these people). Even if the criminalize-abortion activists could successfully argue that the death of a person following surgery—something that occurs regularly—and the details of where and when and why she was treated is newsworthy, is the identity of that person newsworthy?
Courts have generally held the names of crime victims to be newsworthy, but not the names of people who have had particular medical procedures or conditions. Furthermore, Stanek’s claims to being any kind of journalistic outlet are extremely weak given the inaccurate information and unsubstantiated claims that characterize her site. Finally, she lacked information that any crime had occurred.
Alternatively, Stanek et al might argue that they did not publicize a private matter because the clinic was in a public place so the family’s “comings and goings were acts exposed to the public eye.” The Doe v. Mills court rejected this argument, as have other courts, agreeing with a court that had held that a couple who had attended a program at a public hospital for in vitro fertilization did not waive their right to keep the medical condition and treatment private in respect to the general public. Neither Kevin, nor Marie’s parents nor her sister waived their rights to privacy by being visible in public while accompanying Marie to the clinic. Nor did the family make the entirety of their lives public by publishing an obituary. What Stanek and other activists have done to Marie’s family looks to me like precisely what the prohibition of unreasonably publishing private facts is meant to prevent.
Intrusion upon seclusion, appropriation, and false light
We turn to the remaining privacy torts briefly. (1) Intrusion upon seclusion is a cause of action against a person who obtains private information, that another person had the right to keep secret, through means a reasonable person would find objectionable. It concerns the manner in which private information is obtained rather than its publication. Kevin had the right to keep the details of his wife’s pregnancy private and HIPAA bars disclosure of the medical information without permission. I don’t know how Jill Stanek got the information she published, but I can’t think of many unobjectionable or even legal ways she could have. Her use of the term “informant” suggests inducement to me, but if someone sent the information unsolicited, that person could be liable for intrusion upon seclusion.
The tort of (2) appropriation of another’s name or likeness requires unauthorized use for a commercial or advertising purpose in many jurisdictions. The classic case involves using someone’s picture in an advertisement for a product, but if I were Kevin’s lawyer, I’d still bring an appropriation claim on these facts. A number of blogs that advocate the criminalization of abortion are using Marie and Kevin’s names, photos and story to drive traffic to their sites. One that I find especially offensive has a big banner with Marie’s face and the name of Marie and Kevin’s baby above a large red “Donate” button. Additionally, Stanek’s blog has advertisements for commercial products, an online store that’s “a one-stop shop for all your pro-life gear,” and info on how to book her for speaking engagements. Looks like a commercial use to me.
An action for (3) publicity that places another in a false light, entails a showing that the publication is highly objectionable because it characterizes a person falsely by attributing to him beliefs or conduct which are not his own. The alleged beliefs or conduct need not be defamatory or shameful. The kindest of the portrayals of Marie’s family have been as misguided victims lured into aiding and abetting their daughter in an immoral act. If, as I believe is far more likely, the family supported Marie in what was determined to be the best course of action in a terrible situation after weighing the risks, I’d argue they’ve been placed in a false light. Furthermore, the rampant use of Marie’s name and picture could be misconstrued as the family’s endorsement of the anti-choicers belief that abortion should be illegal. We have no reason to believe they feel that way, and some reason to believe they hold the opposite opinion.
Marie’s family members might have claims against different individuals for different torts depending on information I don’t have about who did what. Perhaps, they would have a claim for civil conspiracy under Maryland law as well. I can only discuss possibilities given that the available facts are few and disputed, but the available information suggests they would have a case.
The First Amendment Defense: Phelps v. Snyder
Privacy intrusions often go hand in hand with claims for intentional infliction of emotional distress (IIED). For a viable IIED claim, a plaintiff must show that the defendant, either intentionally or recklessly, engaged in extreme and outrageous conduct that caused the plaintiff severe emotional distress. I think one could prove the outrageous nature of the publication and subsequent campaign to a jury, but I will hope that no one in Marie’s family will experience distress of such a severity that they would have a claim for IIED. Still, given that the harm at issue resulted from speech, let’s imagine a plaintiff in this family’s situation that had both a valid IIED and privacy claim and consider the First Amendment defense.
Last year in Synder v. Phelps, the Supreme Court overturned a judgment against the Westboro Baptist Church for IIED, intrusion on seclusion, and civil conspiracy on free speech grounds. Albert Snyder, the father of a deceased soldier sued Westboro after they picketed his son’s funeral with their signature “God Hates Fags,” “God Hates America,” and other signs. Writing for the majority, Justice Roberts explained that whether holding Westboro liable for its speech was prohibited by the First Amendment depended largely on whether the speech was of public or private concern. Restricting speech on purely private matters does not implicate the same constitutional concerns as limiting speech on matter of public interest. Contrasting cases where an individual’s credit report and a video of an employee engaging in a sex act were found not to be of public concern, the Court found that the content of Westboro’s signs related to broad issues of interest to society at large, not purely private concerns. Distasteful as their speech might be, Westboro expressed views on a public topic by picketing peacefully on public property.
In his concurrence, Justice Breyer agreed the picketing addressed a matter of public concern. He noted that the opinion said little about the effect of television broadcasting and nothing about internet postings. He explained that the government can sometimes regulate picketing and that newsworthiness does not guarantee constitutional protection for speech. One cannot assault a person, for example, knowing the assault will be a newsworthy statement and thereby give the illegal act First Amendment protection. Justice Breyer emphasized the limited nature of the holding:
The dissent requires us to ask whether our holding unreasonably limits liability for intentional infliction of emotional distress—to the point where A (in order to draw attention to his views on a public matter) might launch a verbal assault upon B, a private person, publicly revealing the most intimate details of B’s private life, while knowing that the revelation will cause B severe emotional harm. Does our decision leave the State powerless to protect the individual against invasions of, e.g. personal privacy, even in the most horrendous of such circumstances?
It does not. Justice Breyer explained that the state has an interest in protecting privacy related interests that sometimes conflict with First Amendment values. Given the facts of the case, where the plaintiff saw only the tops of the protestors’ signs as he drove to his son’s funeral and could not hear them once inside, the state’s interest in protecting citizens from severe emotional harm would not be advanced enough to justify punishing Westboro’s speech.
In an impassioned dissent, Justice Alito disagreed with the Court’s determination that Westboro’s speech was on a matter of public concern and explained that Westboro deprived a private person of the right to bury his son in peace by targeting his son as part of a “well-practiced strategy for attracting public attention.” He concluded that having a society in which public issues can be openly and vigorously debated does not requiring allowing the “brutalization of innocent victims” like the mourning father.
The brutalization of Marie’s family as part of the anti-choicers strategy for attracting public attention, was accomplished through speech that was much more clearly of purely private concern than that at issue in Snyder v. Phelps. Jill Stanek and her pack are free to express their views on abortion by holding up signs the required number of feet from a Maryland funeral that say “God hates women who get abortions” a la Westboro. They do not have the right to say, “this is the name of a woman who had an abortion,” or any other medical procedure for that matter, without consent. They do not have the right to publicize a fetus’ anomalies. They do not have the right to take a dead woman and the wife of a man in mourning as their mascot. They do not have the right to publish the names of parents and what actions they took regarding their daughter’s medical issues.
I doubt any amount of money could compensate a family like Marie’s whose private tragedy was made public before they could even bury her. If I’d been attacked in this way, I suspect preventing it from happening to the next person would be the only motivation worth the time and heartache of a lawsuit. Short of a lawsuit in any particular situation, however, we can hope for a better public understanding of the fact that First Amendment rights are not absolute and that we cannot use private information in any way we please that might deter the next blogger from exploiting a private tragedy for the cause.
 The anonymous “sidewalk counselors” tell Stanek the woman looked increasingly pale. Janet Kotowski, “a volunteer with Germantown Pregnancy Choices, which she said assists pregnant women with alternatives to abortion” gave a reporter similar information about when the family visited the clinic, saying that the woman was getting “paler and paler.” Kotowski, who Operation Rescue has referred to as a “pro-life sidewalk counselor” in the context of her complaints against Carhart, told the reporter she, “works next door and saw [the woman] in the parking lot before and after the visits.” In a complaint to the Maryland Board of Physicians, Operation Rescue’s Cheryl Sullenger, states Kotowski told her Marie was at the clinic for 8 ½ to 9 hours, which Kotowski described, like Stanek, as “much longer than patients usually stay.” Ellen Castellano also told Sullenger she saw Marie each day and described her as “weak and pale.”