Biden administration proposes rule to protect privacy of abortion seekers and physicians

The U.S. Department of Health and Human Services announced plans Wednesday to update a landmark federal health privacy law to protect those who have abortions and the doctors who provide that care.

A notice of proposed rulemaking announced in a statement posted to the department’s website focuses on private reproductive health care information that could be used to criminalize or legally penalize abortion care.

According to HHS, the measure would “strengthen Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule protections by prohibiting 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.”

“HHS has heard from patients, providers, and organizations representing thousands of individuals that this change is needed to protect patient-provider confidentiality and prevent private medical records from being used against people for merely seeking, obtaining, providing, or facilitating lawful reproductive health care,” the statement reads. “Reproductive health care would be defined to include, but not be limited to, prenatal care, abortion, miscarriage management, infertility treatment, contraception use, and treatment for reproductive-related conditions such as ovarian cancer.”

“This is a critical step to help patients across our country get the reproductive care they need with the knowledge that their privacy will be protected,” Democratic Sen. Patty Murray of Washington, a senior member and former chair of the Senate Committee on Health, Education, Labor, and Pensions, said in a statement. “I pushed the Biden administration to update existing HIPAA regulations to strengthen our nation’s health privacy protections as Republicans go after patients and providers in the wake of the Dobbs decision, and I am glad the administration is moving ahead with new protections to do just that.”

In September, Murray and 29 of her fellow senators sent a letter to HHS Secretary Xavier Becerra calling on his department to safeguard the privacy of patients seeking reproductive health care by strengthening federal privacy protections under HIPAA.

Politico reported that Vice President Kamala Harris planned to meet with the White House’s Task Force on Reproductive Health Care Access Wednesday afternoon to discuss the updates to HIPAA.

Although HIPAA protects the privacy of a patient’s health care information, it doesn’t stop providers from sharing medical records with law enforcement. The new privacy measures would not change this and would not protect the health information of those who obtain an abortion in states where it is illegal, according to Axios.

In the months that followed the Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling last June that overturned Roe v. Wade, reproductive justice attorneys began counseling doctors and pregnant people about their rights. And in some cases, in preparation for potential lawsuits, lawyers working on behalf of anti-abortion organizations filed preliminary petitions in order to question abortion fund groups and abortion providers and obtain private medical information on reproductive care, the Texas Tribune reported.

Politico reported that an unnamed senior official in the Biden administration told reporters on Tuesday, “We found that even with the permissible disclosures [policy], some providers get fearful when they receive a subpoena or they might feel like they have to turn the information over.”

In reference to abortion seekers, the unnamed official added: “They’re scared, they are concerned about their medical information being misused and disclosed. … As a result, individuals may hesitate to interact with providers, health plans, pharmacies or related health applications out of fear that their data will be tracked or shared inappropriately.”

The proposed rule follows the unprecedented decision April 7 by a federal judge in Texas to stay the Food and Drug Administration’s approval two decades ago of the abortion medication mifepristone.

“When the Supreme Court overturned Roe v. Wade, nearly half a century of precedent changed overnight,” Becerra said in HHS’ statement. “The Biden-Harris Administration is committed to protecting women’s lawful access to reproductive health care, including abortion care. President Biden signed not one but two executive orders calling on HHS to take action to meet this moment and we have wasted no time in doing so. Today’s action is yet another important step HHS is taking to protect patients accessing critical care.”

The proposed rule is subject to a 60-day public comment period before the department reaches a decision about implementing it.

Published with permission of The American Independent Foundation.