Abortion Files to Be Guarded From Law Enforcement Under Rule (3)

Abortion medical records will be better protected under a Biden administration rule issued Monday

The final rule (RIN: 0945-AA20) will block health insurance plans, medical providers, and others from providing law enforcement with that information, including details connected to abortions and other reproductive health services obtained in states where they’re legal.

The rule was issued by the Health and Human Services Department’s Office for Civil Rights.

The HHS said Monday that the OCR received almost 30,000 comments on the rule when it was proposed, with over half of the people and groups involved expressing “general support” while “less than one percent expressed mixed views.”

The rule is the latest effort by the Biden administration to protect access to abortion services in the absence of a federal law guaranteeing the right to the procedure.

It comes days before the Biden administration is set to argue before the US Supreme Court over whether emergency health care requirements trump Idaho’s state abortion ban.

In April, the Biden administration asked the Supreme Court to likewise review a similar case involving Texas abortion law. The high court is also set to rule on a case over access to the abortion medication mifepristone.

“We will help protect your right to privacy,” HHS Secretary Xavier Becerra said in a press briefing announcing the rule.

The rule strengthens the protections of the Health Insurance Portability and Accountability Act of 1996 and prohibits regulated health providers from sharing health information that could be used against someone seeking or obtaining reproductive services in states where they’re legal.

The rule adds a category of health information disclosures and uses that are prohibited. The rule will block regulated entities from offering up health information for investigations or imposing liability on a person over lawfully-obtained reproductive services.

The rule also blocks health information disclosure when law enforcement is going after a health-care provider for providing reproductive services.

Shifting Legal Landscape

Federal abortion protections were overturned by the US Supreme Court in 2022’s Dobbs v. Jackson Women’s Health Organization, spurring state restrictions on reproductive rights and counter-efforts from the federal government.

In the new rule, the HHS said the post-Dobbs “legal landscape increases the likelihood” that a person’s health information would be disclosed in a harmful way in conflict with HIPAA protections.

A shifting legal landscape after Dobbs has “led to questions about both the current and future lawfulness of other types of reproductive health care, and therefore, the ability of individuals to access such health care” and interfered with the public’s “longstanding expectations” about their health information privacy, the HHS said.

In the rule, the HHS notes it has the authority to modify HIPAA rules as needed. The agency said it “carefully analyzed” state restrictions and how health-care providers were interacting with patients post-Dobbs, as well as “state legislative activity” trends on health information privacy.

“An individual who travels out-of-state to obtain reproductive health care that is lawful under the circumstances in which it is provided may now be reluctant to have that information disclosed to a health care provider in their home state if they fear that it may then be used against them or a loved one in their home state,” the HHS said.

The HHS rule also noted that health-care providers might “be unable to provide appropriate health care if they are unaware of the individual’s recent health history, which could have significant negative health consequences.”

Sen. Patty Murray (D-Wash.), who was among more than 40 lawmakers who wrote to the HHS when the rule was proposed in 2023, praised the measure on Monday.

“Women who seek reproductive health care, and the doctors who provide that care, should never be treated as criminals—but Republican lawmakers and prosecutors in state after state have made clear that they want to punish and jail women and their doctors over what is often lifesaving abortion care,” said Sen. Patty Murray (D-Wash.) in a statement.

“By strengthening privacy regulations under HIPAA, the Biden administration is taking an important step toward protecting women and doctors,” Murray said.

The Alliance Defending Freedom, a legal advocacy group sparring with the Biden administration in court over abortion-related measures, also wrote to Becerra about the HHS’ privacy rule proposal in 2023. In the letter, ADF said the proposal “would undermine state statutes enacted in furtherance of legitimate state interests relating to the subject of abortion.”

“The proposed rule exceeds the authority given to HHS by HIPAA and the HITECH Act, and barely attempts to hide its purpose of preserving a federal right to abortion after Dobbs definitively declared that no such right exists,” the letter said.