Biden Admin Tightens HIPAA Restrictions to Keep Abortion Records out of Criminal Probes

The Biden administration’s Department of Health and Human Services (HHS) has modified a patient privacy law to prevent abortion records from being accessed for investigations.

The HHS, working with the Office of Civil Rights (OCR), enacted what it called the “HIPAA (Health Insurance Portability and Accountability Act of 1996) Privacy Rule to Support Reproductive Health Care Privacy” for protected health information (PHI).

“Many Americans are scared their private medical information will be being shared, misused, and disclosed without permission,” HHS Secretary Xavier Becerra said in a press release.  “This has a chilling effect on women visiting a doctor, picking up a prescription from a pharmacy, or taking other necessary actions to support their health.”

Whether a person can get an abortion in their own state or travel to where it is legal, the Biden administration is working to strengthen laws protecting abortion access, he said.

“With reproductive health under attack by some lawmakers, these protections are more important than ever,” he said.

The rule prevents the health care provider and the patient’s PHI from being disclosed in any kind of investigation.

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According to OCR director Melanie Fontes Rainer, patients who travel across state lines to areas where abortions are legal have expressed concerns that their health care records could be subject to legal scrutiny since the U.S. Supreme Court overturned Roe v. Wade in 2022.

“Today’s rule prohibits the use of protected health information for seeking or providing lawful reproductive health care and helps maintain and improve patient-provider trust that will lead to improved health outcomes and protect patient privacy,” Ms. Fontes said.

In April 2023, the Biden administration said it planned to revise HIPAA so that patients are protected from “criminal, civil, or administrative investigations into or proceeding against any person in connection with seeking, obtaining, providing, or facilitating reproductive health care, where such health care is lawful under the circumstances in which it is provided.”

Abortion Travel Bans

Although no travel bans on abortions have been enacted yet, the Associated Press reported that Alabama Attorney General Steve Marshall implied in a lawsuit that just as abortion is a criminal offense in the state, “a criminal conspiracy formed in the State to have that same act performed outside the State is illegal.”

“This general rule against extraterritorial application of criminal law, however, has enough gaps to allow prosecution of a wide variety of crimes that take place outside the jurisdiction of a state,” the report stated. “It is beyond the scope of this Article to explore all the twists and turns of this rule, but a few examples suffice to support the general point here.”

One of its exceptions included a California Supreme Court Ruling that ruled states have jurisdiction over crimes committed outside a state if the crime causes harm within the state in what is called the “effects doctrine.”

Citing an example of how a Georgia patient traveling outside state lines to receive an abortion could hypothetically be prosecuted, the report stated, “An aggressive prosecutor could use the effects doctrine to argue that the out-of-state killing has the in-state effect of removing a recognized member of the Georgia community from existence.”

Newsom Targets Alabama

California Gov. Gavin Newsom recently targeted Alabama in a “Campaign for Democracy” ad campaign.

In the video, two women cross the Alabama state line to get an abortion while being pursued by law enforcement.

“We’re almost there,” the passenger says. “You’re going to make it.”

Just as she says this, they are pulled over and arrested in a scenario framed as a suspenseful failed escape plan.

A voiceover then says, “Trump Republicans want to criminalize young Alabama women who travel for reproductive care.”

The law enforcement officer then forces the driver to take a pregnancy test before arresting her.

The voiceover then tells the audience to take action by visiting righttotravel.org where people are encouraged to sign a petition against legislation that would prohibit women crossing state lines to get abortions.

There appears to be no case law discussing whether law enforcement can administer pregnancy tests to suspects in an alleged crime.