The Department of Health and Human Services has found a new way to get around abortion bans in pro-life states: All it needs to do is tweak the Health Insurance Portability and Accountability Act (HIPAA).
In April, HHS announced several proposed changes to HIPAA. While Democrat lawmakers have stated that the changes don’t go far enough, Republican state attorneys have criticized the proposal, arguing that they will make it harder for pro-life states to enforce laws preventing abortions.
Patient Privacy Under HIPAA
Most people know HIPAA as the law that protects patient privacy, but while it usually prohibits strangers from accessing private information, there are some exceptions. (VIDEO: Ohio Bill Is a Trojan Horse That Stifles Parental Rights)
For example, if a psychiatric patient expresses a desire for self-harm or suicide, HIPAA allows the healthcare provider to share that information with law enforcement. Or if someone received an abortion, that information could be disclosed in the case of a criminal, civil, or administrative investigation.
Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization a year ago, HHS decided that disclosing patients’ personal health information (PHI) to law enforcement creates “chill[ed]” access to what it deemed lawful health care.
“The department recognizes that the need for heightened protections for highly sensitive PHI is now more acute than it was before, given the actions taken by states to regulate, and even criminalize, reproductive health care,” the proposal read.
The new proposal would prohibit doctors and medical institutions from sharing information about their patients’ “reproductive health care” if they pursued that “health care” in a state where it was legal; or if that form of “health care” was federally protected; or if it “is provided in the state in which the investigation or proceeding is authorized and that is permitted by the law of that state.”
Defining Terms
Among other slight changes to HIPAA, the department achieves these effects by “clarifying” the definitions of terms like “person” and “health care.”
Currently, the term “person,” which is used throughout the law, is undefined but is generally interpreted according to a 1935 law as meaning “a natural person, trust or estate, partnership, corporation, professional association or corporation, or other entity, public or private.” The HHS proposal would “clarify” that definition by defining “person” according to 1 U.S. Code 8, which specifies a “born-alive infant” — a phrase that HHS points out “does not include a fertilized egg, embryo, or fetus.” (READ MORE: IVF Companies Depend on Abortion)
The proposal also adds a definition of the term “reproductive health care,” which it argues is “care, services, or supplies related to the reproductive health of the individual.”
Roger Severino, former head of HHS under Donald Trump, pointed out to National Catholic Register that, under the proposal, if a medical provider learns that illegal abortion drugs are being trafficked across state lines, “the medical providers in pro-abortion states would be barred from cooperating with law enforcement in pro-life states as part of any investigation that deals with the interstate trafficking of abortion drugs.”
Under Fire from Both Sides
HHS has received criticism from both sides of the political aisle. Democrats believe that the proposal doesn’t go far enough, and Republicans argue that it undermines states’ rights to enforce their laws.
In June, nearly 50 Democrat senators and representatives criticized the proposal, stating that it did not provide sufficient protection to patients and doctors to “prevent rogue state Attorneys General from attempting to obtain the private health records of Americans, including, but not limited to, the records of individuals seeking a legal abortion or medical assistance with gender transition.”
Sen. Ron Wyden (D-Ore.), who helped author the Democrat critique, demanded that the Biden administration require state law enforcement to obtain warrants before demanding healthcare professionals turn over patient information.
On the other hand, 19 Republican state attorneys signed a letter authored by Tennessee Attorney General Jonathan Skrmetti in mid-July, arguing that the proposal undermines state law:
Rather than respect the decisions of some States to regulate abortion, the Biden Administration has instead sought to wrest control over abortion back from the people and their elected representatives…. The proposed rule exceeds the Department’s statutory. HIPAA authorizes HHS to set standards for protecting privacy in “health information.” The statute does not empower HHS to shield from authorities evidence of legal wrongdoing under state law simply based on a claimed connection to “health care.”
Their letter also expressed their concern that the Biden administration will use the proposal to advance transgender-policy goals given the broad definition of “reproductive health care,” which includes any health care related to “reproductive organs.” They argued that HHS could potentially block any state legislation preventing transgender surgeries or puberty blockers for children and adolescents. (READ MORE from Aubrey Gulick: Maine’s Abortion Laws Just Got More Extreme)
The proposal, which was originally published in April and opened for comments through mid-June, is expected to become law by the end of this year. Severino told Politico that he expects the law to face legal challenges.
“I would imagine, at the very least, that a challenge would come from state attorneys general, because the administration is interfering with their ability to enforce their own laws,” he said.