dissenting:
If this appeal involved only a matter of judgment as to whether the balance should be struck in favor of a woman’s interest in maintaining confidentiality in her medical dealings with her physician involving an abortion or the grand jury’s power to acquire names of patients a physician treated, I would ordinarily choose to preserve confidentiality. Faced with a similar choice between protecting the identity of persons whose names were reported to the State Department of Public Health in connection with venereal disease control and assisting the prosecutor in investigating an employee of the Department who was charged criminally with taking indecent liberties with women whose names were reported to that Department, we recently opted in favor of not exposing the women’s names even to a grand jury in People ex rel. Department of Public Health v. Calvo (1982), 89 Ill. 2d 130. There is no showing here of the purpose for which the grand jury needs the names it seeks or even of the general nature of the inquiry the grand jury may be pursuing. If disclosure of the names was needed to protect people from serious harm, my response might be different, but the record here reveals no such necessity.
There is more involved in this case than a simple choice between confidentiality and whether a grand jury investigation into an undisclosed area should be aided. Although the order of the circuit court limited the disclosure to be made to the grand jury to names of women, the women involved may be apprehensive that members of the grand jury or court personnel serving the grand jury and having access to their names in that capacity may be their neighbors, acquaintances or prospective employers. (People ex rel. Director of Public Health v. Calvo (1982), 89 Ill. 2d 130, 134.) I disagree with the majority’s contention that any intrusion on the privacy of women whose names surface before the grand jury would be minimal. Obviously the only reason the grand jury would need the names is so that the women could be contacted. There is no way of knowing where the grand jury investigation might lead and what impact it may have on the lives of the women whose names are furnished and their families. Consider the trauma a young, unmarried woman would suffer when she is called upon at her parents’ or relatives’ home by process servers seeking to subpoena her appearance before the grand jury for the purpose of asking her if she would be willing to waive her physician-patient privilege? Or, consider the case of a married woman whose husband does not know she had an abortion, but finds out when the process server appears at their home to summon her before the grand jury only for the purpose of inquiring whether she would be willing to waive her privilege. The consequences of the majority opinion can be catastrophic, uprooting life-styles and shattering relationships. And to what end, in view of the circuit court’s order that the names were to be kept confidential unless the patient specifically and fully waived the privilege? Is it so that the grand jury will have the names of women who received abortions and can then contact them to ask if they wish to waive their physician-patient privilege? This is a strange way of investigating whether there have been criminal violations and in fact smacks more of harassment than an investigation carefully and professionally conducted and which the prosecuting authorities have reason to believe is likely to be productive.
The majority points out that public aid funds were used to pay for the treatment received by the women in question. It is highly discriminatory, in my judgment, to sanction production of the names on the ground that the women were public aid recipients, and I see no justification for divulging their names solely because public funds were used to pay for their abortions. There is nothing in the record to indicate that the women involved waived any privilege by having public aid pay for their treatment. How one standard of waiver for private patients and another standard for public aid recipients would be appropriate or justifiable I do not understand. The physician-patient privilege contemplates no such dichotomy.
I find extremely persuasive the defendant’s argument that disclosing the names of his patients of necessity reveals the nature of the problem for which they consulted him because the only medical service he provides is the performance of abortions. Thus, by furnishing the patients’ names, the defendant discloses that the patient had an abortion or at least consulted him regarding one. Even the majority acknowledges this possibility. This is the very type of information the statute is designed to preserve as confidential. As I view the statute, the information the defendant is being ordered to disclose imparts precisely the kind of information the statute is designed to guard.
I would not draw the distinction the majority does between this case and the wise decision in People v. Bickham (1982), 89 Ill. 2d 1.
The fact that the grand jury had the names in Biekham while it is trying to get the names here is not a substantial difference. In Biekham this court said, “[I]t is certainly reasonable to presume that the 62 women named in subpoena 200 obtained medical care with the expectation that their medical records would remain confidential.” (89 Ill. 2d 1, 6.) It seems to me just as reasonable to presume that the women in this case expected that the fact that they were treated at a medical center dealing only in abortions would be kept confidential.
The majority claims there is no provision in the statute establishing the physician-patient relationship which immunizes a patient’s name, and that the defendant has conceded as much in his brief before this court. I do not believe that the defendant agrees with this conclusion; he merely concedes that Geisberger v. Willuhn (1979), 72 Ill. App. 3d 435, is such a holding, and urges us to apply the rule of that case differently in the context of a woman seeking an abortion.
The statute setting forth the physician-patient privilege in Illinois reads in pertinent part:
“No physician *** shall be permitted to disclose any information he may have acquired in attending any patient in a professional character, necessary to enable him professionally to serve such patient ***.” (Ill. Rev. Stat. 1981, ch. 51, par. 5.1.)
The court in Geisberger v. Willuhn states that, to be eligible for the privilege, a piece of information “must have been necessary for the performance of a professional duty on the part of the physician *** to treat, prescribe or act for the patient.” 72 Ill. App. 3d 435, 437.
I believe that it is unrealistic to conclude, as the majority does, that the names of defendant’s patients were not necessary for the treatment he was rendering or to his ability to prescribe or act for his patients. If it became necessary during the abortion to transfer a patient to a hospital, how could that be accomplished if defendant did not know her name? If for some reason it was necessary to impart information about the patient’s condition to the patient, how could that be done if the defendant did not have her name or at least her address or telephone number? A physician who performed a surgical procedure without knowing how to identify his patient for admission to a hospital, who to contact in case an emergency arose or how to contact the patient later if it were necessary to do so would be guilty of extremely sloppy practice, if not malpractice. Tins is particularly true, I should think, in the case of a surgical procedure such as an abortion.
In my judgment the majority opinion will chill the exercise of the constitutional right recognized in Roe v. Wade (1973), 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705, to seek abortions. Women may in many instances decide to forgo an abortion rather than risk the possibility that their names will be exposed to a grand jury in connection with seeking an abortion. The majority’s decision directs the law of privilege and the right of privacy down a cruel and insensitive path because of its indifference to the havoc it may cause in the lives of women whose names it orders be revealed, while in this case what the disclosure will contribute to the cause of law enforcement is unclear at best.