Since the Supreme Court overturned national abortion rights protections in their Dobbs v. Jackson Women's Health Organization, birther states have been on a tear to ban the procedure and to keep people seeking abortions from traveling to states where procedure is legal. Their efforts have included everything from the Texas-style vigilante law to Idaho’s new “abortion trafficking” ban, which effectively places limits on interstate travel by minors. These laws don’t just put the people seeking abortions in legal jeopardy, but people assisting them–including providers.
The Biden administration just announced one way it will fight back. It is proposing to strengthen the Health Insurance Portability and Accountability Act (HIPAA) rules to keep patient and provider information on legal abortion services away from forced birth state law enforcement and local officials. The new rules will prohibit “the use or disclosure of protected health information (PHI) to investigate, or prosecute patients, providers, and others involved in the provision of legal reproductive health care, including abortion care.”
“I have met with doctors across the country who have shared their stories,” said Melanie Fontes Rainer, director of the Office for Civil Rights at Health and Human Services. “These providers have expressed fear, anger, and sadness that they or their patients may end up in jail for providing or obtaining evidence-based and medically appropriate care. … This is a real problem we are hearing and seeing, and we developed today’s proposed rule to help address this gap and provide clarity to our health care providers and patients.
What this will mean when the rule-making is done: Doctors’ offices, health care clinics, and insurance companies will be prohibited from releasing health care records to law enforcement or state officials trying to pursue criminal or civil investigations into people fleeing their home states to get abortions where they are legal.
“Specifically, the rule would prevent an individual’s information from being disclosed to investigate, sue, or prosecute an individual, a health care provider, or a loved one simply because that person sought, obtained, provided, or facilitated legal reproductive health care, including abortion,” the White House said in a fact sheet explaining the rule. “By safeguarding sensitive information related to reproductive health care, the rule will strengthen patient-provider confidentiality and help health care providers give complete and accurate information to patients.”
When Congress passed HIPAA back in 1996, vigilante anti-abortion state laws were the last thing they were thinking about. The privacy protection provision of law was intended to get ahead of the internet and the near-universal adoption of digital medical records by providers and insurers, but also to give guidelines for what health information needs to be protected. Bottom line: Under the law, providers, insurance companies, hospitals, etc. cannot provide your private health information without your consent. (It does not mean that public and private venues are violating HIPAA when they ask you to wear a mask or prove that you are vaccinated against COVID-19 to enter. Because they’re not asking your doctor for that. You are perfectly free to share or not share that information, just as they are free to ask you.)
There will probably be challenges to this rule. One could come from House Republicans, who might try to use the Congressional Review Act to rescind it. There will also likely be legal challenges from the forced birth states and the anti-abortion industry behind all these new laws. Ultimately, Congress is going to need to codify these expanded protections by amending the HIPPA law.
In January, Democratic Sen. Mazie Hirono of Hawaii introduced the Secure Access for Essential Reproductive (SAFER) Health Act that would make similar updates to HIPAA with respect to abortions and miscarriages. There’s a companion bill in the House, that of course won’t be going anywhere as long as Republicans remain in control of the House.
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