United States: Federal law will protect the medical records of women who pass through state borders with the motive of undergoing abortion in jurisdictions where it is not against the law, per a new provision the Biden administration finalized today.
New Provision Faces Criticism
This regulation is almost always going to be criticized and challenged in court by anti-abortion advocates. In contrast, abortion rights advocates will be able to say it does not go far enough for them, as reported by the Associated Press.
White House Affirms Protection of Reproductive Health Privacy
“No one should have their medical records used against them, their doctor, or their loved one just because they sought or received lawful reproductive health care,” Jennifer Klein, the director of the White House Gender Policy Council, told reporters on Monday.
The new regulation is the outcome of the Health Insurance Portability and Accountability Act of 1996 which imposes upon medical providers and health insurers restrictions on information about patients. Generally speaking, but not always, law enforcement can tapped into the records for investigations, though.
In states with strict abortion laws, federal regulation would be the main block for state or city officials gathering records on reproductive health care for criminal investigations on a civil or administrative level from the providers of health care in a state that still permits abortions.
In reality, the ubiquitous nature of this law would mainly benefit women who escaped restrictive state bans in order to obtain from a medical provider abortion in states that permit it.
“As someone who sees patients who travel from all across the country at our health center in D.C., I know that it’s a reality. I’ve had patients ask … are there going to be consequences for me when I go home?” said Dr. Serina Floyd, an OB-GYN who provides abortions in Washington.
Women who may need these services as well, including fertility, contraception, or miscarriage care, are also protected, as was announced today by Mr. Xavier Becerra, the Secretary of Health.
A gang of 19 Republican Attorneys General officials from states with strict abortion laws, through a published draft last year, urged the Health and Human Services agency to do without the rule. Hence, the regulation “will improperly prevent states from enforcing their laws and does not solve any actual pressing issue,” they wrote in a letter to HSS a year ago.
“Relying as it does on a false view of state regulation of abortion, the proposed rule is a solution in search of a problem,” the letter said.
However, the new legislation is too limited because it does not include preventive measures to protect women from being criminally investigated when they order abortion pills online, as was becoming the case. For example, a patient’s medical records that were ordered while she was in her home in a state like Mississippi, where abortion is mostly banned, from a provider in Illinois, where abortion is generally legal, would not be protected as well.
Critics Highlight Limitations of New Rule
Similarly, the rule does not require any record of patients from their medical professionals to be signed off by a court official, an amendment some Democrats had sought from the administration. Law enforcement authorities can, on the contrary, use a subpoena, court order, or administrative request to obtain patient records.
Becerra acknowledged to reporters that the regulation itself is not perfect and may be tried by courts legally.
“Until we have a national law that reinstitutes Roe v. Wade, we’re going to have issues,” Becerra said. “But that doesn’t stop us from doing everything we can to protect every American’s right to access the care they need.”
Not less than 22 Democratic-run states have had legislation that seeks to protect healthcare workers or patients who had participated in an abortion in these states to avoid investigations by law enforcement from states that have prohibited this medical procedure. Now, some medical professionals in those states deliver abortion pills with the use of telemedicine to women in places where the abortion ban is in force, as reported by the Associated Press.
No one knows for sure if public officials in this context have requested any of their patient’s medical records pertaining to abortion. However, one year ago, officers in Texas made requests for documents from at least two out-of-state health facilities that accommodate gender-affirming care. Texas is like most other Red States because it has a ban on gender-transitioning therapy for youth patients.