Biden Administration Tightens Privacy Rule to Protect Patients From Being Reported for Abortions

In July, 19 Republican state attorneys general asked Biden to permit health care providers to give patients' private medical data to the police if they're suspected of having an abortion.

Biden Administration Tightens Privacy Rule to Protect Patients From Being Reported for Abortions

On Monday, the Biden Administration announced new rules to protect patients and health care providers from legal investigations, particularly around abortion and reproductive care. The rule also ensures that health care providers living in states with abortion bans will not be required to report their patients who travel out-of-state for abortions to authorities.

“People feel scared to confide in their providers. People are worried in this new climate about how their medical information might be used,” Melanie Fontes Rainer, director of the civil rights office at Health and Human Services, said at a Monday news conference announcing the rule. “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.” Fontes Rainer added that she needed to seek abortion care herself last year after experiencing a miscarriage while pregnant with twins. “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,” she said.

This action from Biden’s HHS aims to strengthen HIPAA’s current medical privacy protections. The rule states that health care providers, insurers, and any business governed by HIPAA are prohibited from giving away a patient’s health information to law enforcement. The finalized rule comes amid growing concerns about how abortion bans could contribute to the criminalization of pregnant people and health care providers. Existing state abortion bans currently threaten to criminalize and imprison abortion providers and not patients. In July, 19 Republican state attorneys general wrote a letter calling on Biden to permit health care providers to give patients’ private medical data to the police if they’re suspected of having an abortion.

Secretary of Health and Human Services, Xavier Becerra. Photo: Shutterstock

For years now, even before Roe v. Wade was overturned, pregnant people faced criminal investigations and charges for their pregnancies and self-managed abortions. There have been several cases of people who self-manage their abortions or experience miscarriage or stillbirths seeking help from their local hospital and being reported to police by health care workers who wrongly believe they’re required to do so under the law.

In Ohio, in 2023, a woman named Brittany Watts faced jail time for a miscarriage 22 weeks into her pregnancy after she was reported to the police by her nurse because the hospital suspected she self-induced an abortion. From 2006 to the 2022 reversal of Roe, Pregnancy Justice has documented about 1,400 cases of pregnancy-related criminal charges across the U.S.

“Each and every American still has a right to their privacy, especially when it comes to their very private, very personal health information,” Secretary of Health and Human Services Xavier Becerra said. “When you access care, when you go see a doctor, when you enter a hospital, when you see a medical professional and you provide—because you’re required or you requested—very personal health information, that information is entitled to protections under federal law, perhaps even state law. But under federal law, you have rights to your privacy. That’s what today is about.”

The new rule could be an important step toward protecting patients from being investigated by police and other government agencies for their pregnancies—and an important step toward educating health care providers and preventing them from reporting their patients. But as Reuters points out, the new rule is likely to face legal challenges, as the administration’s guidances and proposals surrounding reproductive rights often have. There’s also the issue of the upcoming election, as a second Trump administration would almost certainly reverse the rule. In our post-Roe legal landscape, even small, common-sense steps toward progress and basic rights face tooth-and-nail challenges.

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