Republican attorneys general in 19 states are claiming that they have the right to demand private patient records from health care providers in other states, where they have no jurisdiction. That’s the assertion they made in a letter last month to the Biden administration in opposition to a proposed rule to protect patient privacy from them. The only reason those attorneys general want to get their hands on that information is to prosecute people seeking abortions or gender-affirming care, along with anyone assisting them. Fifty congressional Democrats are trying to shut them down to protect Americans’ privacy.
In April, the administration announced it would write new rules to make the Health Insurance Portability and Accountability Act stronger, ensuring patient and provider information on legal abortion services were safeguarded from forced-birth state law enforcement and local officials. For good reason, because of course that’s what those red state officials immediately moved to do: chase their citizens down in other states where abortion is legal.
In their letter, first reported on by the Mississippi Free Press last week, the Republican officials quote the Supreme Court’s Dobbs decision that overturned abortion rights, claiming that in accordance with the court, they are simply asserting states’ “legitimate interests” in protecting “prenatal life,” “maternal health and safety,” and “the integrity of the medical profession.” They claim that those concerns stretch across state lines. The letter also threatens yet another lawsuit: “The proposed rule is at odds with the Constitution,” the letter says, arguing that it would “threaten States’ ability to exercise their longstanding medical oversight authority.”
One state, Kentucky, might already be trying to access that information. Kentucky Attorney General Daniel Cameron signed on to the letter, the Courier Journal reports. Cameron is shamelessly claiming it’s a states’ right issue when he and his fellow forced birthers try to assert their authority in other states. "I am proud to defend Kentuckians’ right to govern themselves without unlawful interference from the federal government,” Cameron said. Courier Journal reporter Joe Sonka asked if his office had already sought out those private health records and didn’t get a response. That’s not a confession, but it sure as hell isn’t a denial.
Congressional Democrats have responded strongly, telling the Biden administration it needs to make its proposed rule protecting this information even stronger. Sens. Ron Wyden of Oregon and Patty Murray of Washington spearheaded a letter from 50 House and Senate Democrats and independent Sen. Bernie Sanders. They are demanding the new rule require any law enforcement official or agency to get a warrant in order to get health records, and prohibit law enforcement agencies from sharing records. They also want it to require that the person involved is informed of the warrant. As of now, the proposed rule requires only that state officials get a subpoena, administrative request, or another kind of court order to obtain the records.
“Although doctors cannot be forced to testify about their patients’ medical conditions in courts across the country, patient records containing the same information can be subpoenaed by law enforcement agencies, without showing probable cause of a crime and without oversight by an independent judge,” they write. “The ability of law enforcement agencies to subpoena these records undermines patients’ legal protections, particularly in an era of digital health records, where every patient interaction is carefully documented.”
Wyden told Politico that in the face of this clear threat from forced birth states, the proposed rule isn’t nearly strong enough. “[I]t’s really a mistake, substantively and politically, to just throw in the towel and let the government make a policy that doesn’t come close to dealing with the risk women are facing,” he said. He has evidence to back up his concern.
“I’ve been investigating pharmacy chains for the last two months on their privacy practices, and I can tell you that health care providers are turning over Americans’ sensitive health records without a warrant every single week,” Wyden said. “And, for the most part, the patients are never going to be told that the information was turned over. That’s why this rule is so unacceptable. We’re talking about uterus surveillance.”
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