FangXiaNuo/Getty

Proposed HIPAA Rule Would Restrict Law Enforcement Access to Abortion, Reproductive Health Data Across State Lines

The HHS published a proposed modification to HIPAA’s privacy rule, giving new protections to personal health information related to reproductive care history in the wake of Dobbs and the overturning of Roe v. Wade.

New proposed regulations surrounding reproductive health care data could strengthen privacy protections for patients as the nation’s legal landscape threatens patient privacy for select reproductive treatments, specifically abortions. 

The U.S. Department of Health and Human Services is set to publish a proposed rule on April 17 that would update patient privacy provisions in the federal Health Insurance Portability and Accountability Act, commonly known as HIPAA.

Citing recent legal developments in the judicial system as well as differing state laws, HHS said that it may need to fortify existing health care privacy laws to ensure patients have safe, confidential access to legal healthcare treatments.

“Based on information the department has received in recent months, we believe it may be necessary to modify the privacy rule to avoid the circumstance where an existing provision of the privacy rule is used to request the use or disclosure of an individual’s PHI [protected health information] as a pretext for obtaining PHI related to reproductive health care for a non-health care purpose where such use or disclosure would be detrimental to any person,” the rule reads

Previous regulations within HIPAA’s privacy rule worked to balance a patient’s PHI confidentiality while allowing certain disclosures on the basis of legal needs. The modifications suggested in this recently proposed rule amend the privacy law to strengthen protection surrounding the usage of PHI in criminal and civil investigations on the basis of seeking or providing abortion access.

“Based on the longstanding purposes of HIPAA, there is a compelling need to provide additional protections to this especially sensitive category of information,” the rule says. “The Department believes it is necessary to provide heightened protections for … PHI sought for the purposes of conducting a criminal, civil, or administrative investigation into or proceeding against any person in connection with seeking, obtaining, providing, or facilitating reproductive health care that is lawful under the circumstances in which it is provided.”

This major step in codifying protections for reproductive data privacy follows the landmark Supreme Court case Dobbs vs. Jackson, which ruled in 2022 that there is no right derived from the U.S. Constitution to guarantee an abortion, subsequently overturning the longstanding abortion access case Roe v. Wade.

Concern then mounted over data privacy for people seeking any type of reproductive health care, ranging from abortion to contraception. The question of whether or not law enforcement agencies in states with limited access to legal abortions could utilize PHI and other data—such as GPS and search histories—was also raised in the aftermath of the Supreme Court’s ruling.

In response, President Biden signed an executive order strengthening reproductive data privacy, and tech companies like Google began safeguarding and deleting user location history to prevent law enforcement from abusing private user information.  

HHS leadership hinted at strengthening protections surrounding PHI privacy in mid to late 2022, following the Court’s ruling. HHS Secretary Xavier Bercerras condemned the Supreme Court’s ruling, with the agency’s Office of Civil Rights Director Melanie Fontes Rainer telling Nextgov that “all options are on the table” to protect patient rights and confidentiality.

“Those developments have made information related to reproductive health care, which has long been considered highly sensitive, more likely to be of interest for punitive non-health care purposes, and thus more likely to be disclosed if sought for a purpose permitted under the privacy rule today,” HHS said in the rule.

The new proposed rule limits access to reproductive PHI for criminal and civil proceedings specifically if the investigation is being conducted outside of the state the procedure occurred in; that is, states that do not allow abortions are not able to investigate a resident’s health care that occurred in a separate state where the procedure is legal. 

In a corresponding press release, Fontes Rainer clarified that the proposed rule change also works to help health care providers continue giving care.

“I have met with doctors across the country who have shared their stories,” said Fontes Rainer. “These providers have expressed fear, anger, and sadness that they or their patients may end up in jail for providing or obtaining evidence-based and medically appropriate care. Today’s proposed rule is about safeguarding this trust in the patient-provider relationship, and ensuring that when you go to the doctor, your private medical records will not be disclosed and used against you for seeking lawful care.”

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.