Biden Moves to Shield Patients’ Abortion Records from GOP Threats

REUTERS/Caitlin O’Hara
A woman holds a sign at a protest in the district of Republican state Representative Matt Gress after Arizona’s Supreme Court revived a law dating to 1864 that bans abortion in virtually all instances, in Scottsdale, Arizona, U.S. April 14, 2024.

The Biden administration on Monday announced new rules intended to protect the privacy of patients seeking abortions, and the health workers who may have provided them, from Republican prosecutors who have threatened to crack down on the procedure.

The rules strengthen a nearly 30-year-old health privacy law – known as the Health Insurance Portability and Accountability Act, or HIPAA – to offer more robust legal protections to those who obtain or provide reproductive health care in a state where it is legal to do so. The final policy prohibits physicians, insurers and other health-care organizations from disclosing health information to state officials for the purposes of conducting an investigation, filing a lawsuit or prosecuting a patient or provider. It covers women who cross state lines to legally terminate a pregnancy and those who qualify for an exception to their state’s abortion ban, such as in cases of rape, incest or a medical emergency.

Under previous rules, organizations were allowed to disclose private medical information to law enforcement in certain cases, such as a criminal investigation. Officials at the Department of Health and Human Services said they had heard from patients and providers who were confused about their legal risks or had even deferred care amid GOP threats in the nearly two dozen states with abortion restrictions.

“People feel scared to confide in their providers. People are worried in this new climate about how their medical information might be used,” said Melanie Fontes Rainer, director of the civil rights office at HHS, which revamped the rules. “The goal here is to reinstate trust into the provider medical relationship. … The goal here is that people don’t stay home if they’re too scared to get care.”

Monday’s announcement is the latest effort by the Biden administration intended to safeguard reproductive health care, a central element of President Biden’s reelection bid. However, the swell of criminal prosecutions that many abortion rights advocates and Democrats feared hasn’t materialized since the Supreme Court’s ruling nearly two years ago in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and eliminated the constitutional right to abortion. State abortion bans explicitly exempt those seeking abortions from prosecution.

But doctors can face steep fines and jail time, and many health-care workers have said they are confused about the current legal landscape governing abortion access, such as whether a federal emergency care law takes priority over state abortion bans, as the Biden administration has argued. HHS and reproductive rights advocates have also cited cases such as the arrest of Brittany Watts as examples of the need for stronger privacy protections. Watts, an Ohio medical receptionist, has said she miscarried at home last year and told a nurse, who then reported the situation to police.

Some GOP leaders have insisted they need access to patients’ reproductive health information to ensure that their states’ abortion restrictions are effective. Indiana Attorney General Todd Rokita (R) this month said his state’s terminated-pregnancy reports, which offer some identifying information about individual abortions, should be released as public records.

Nineteen Republican attorneys general last year bashed the Biden administration’s efforts to overhaul HIPAA as unnecessary and unconstitutional.

Biden officials have “pushed a false narrative that States are seeking to treat pregnant women as criminals or punish medical personnel who provide lifesaving care,” the attorneys general wrote in a June 2023 letter to HHS Secretary Xavier Becerra. “Based on this lie, the Administration has sought to wrest control over abortion back from the people in defiance of the Constitution and Dobbs.”

The White House has countered that federal privacy laws were insufficient for a post-Roe world.

Under new state abortion restrictions, “it’s going to be a crime, which means that it is very likely if law enforcement requests your personal and private medical records, they may be entitled to receive them,” Vice President Harris said at an administration meeting on reproductive health care last year. “Part of the conversation that we are having today is what we can do … to reinforce protections for patients’ privacy.”

Fontes Rainer said the effort is personal to her. The HHS civil rights official said she was pregnant last year with twins before miscarrying and needing an abortion.

“It is my absolute duty to share my story, and to do everything I can to [help] the millions of women across the country who don’t have a voice,” Fontes Rainer said in an interview Sunday, adding that her office worked “pretty quickly” to overhaul the federal health privacy rules.

“We heard of a problem that was happening. … And we wrote this rule in a way that allows for lawful reproductive health care,” she said.

During the summer, some congressional Democrats – including Sens. Patty Murray (D-Wash.) and Ron Wyden (D-Ore.) – urged the administration to go further than what it had proposed. They unsuccessfully pressed for the final rules to include a requirement that law enforcement agencies obtain a warrant before forcing doctors and pharmacists to hand over patients’ private medical information. Instead, HHS is requiring plans and providers to get an attestation in some instances from those seeking medical records that the information won’t be used for a prohibited purpose.

Requiring search warrants “as a condition of the use or disclosure of [protected health information] is beyond the scope of this final rule,” HHS wrote.

Biden’s ability to intervene in states with abortion bans is limited, so administration officials have focused on issuing guidelines, executive orders and legal interpretations aimed at offering piecemeal protections.

“We have no illusion that everything that the president has urged us to do with our authorities is going to undo Dobbs,” Becerra said Monday at a news conference.

The new rules won praise from abortion rights groups such as Reproductive Freedom for All, which called the measure an “important step in protecting reproductive freedom and ensuring all of us can make our own decisions about pregnancy and abortion.”

Conservatives characterized the rule as an overreach. Roger Severino, who led the HHS civil rights office during the Trump administration, criticized Biden officials for “threatening medical providers to prevent them from cooperating with law enforcement.”

“This puts medical providers in an impossible situation,” Severino added. “Either they comply with federal law with respect to a warrant or they violate the HIPAA rule, which could carry criminal penalties.”

A prominent antiabortion group slammed the rule, which arrives just over six months before the presidential election.

“It should surprise no one that the radical abortion lobby controlling the Biden Administration wants to interject itself between law enforcement and possibly law-breaking abortionists,” Kristi Hamrick, a spokesperson for Students for Life Action, wrote in an email.

“Elections have consequences, and this is one of them,” Hamrick wrote. “When Biden won, the stakes were not just one person at the top of the ticket, but an entire administration that can weaponize policy.”