White House takes steps to protect patient abortion records

The Department of Health and Human Services (HHS) issued a final rule on Monday blocking the disclosure of protected health information to assist in the investigation or litigation of patients or providers involved in legal reproductive health care.

The rule issued by the HHS Office for Civil Rights (OCR) prohibits providers, clearinghouses and their business associates regulated by the Health Insurance Portability and Accountability Act (HIPAA) from disclosing a patient’s protected health information to facilitate an investigation or impose liability for law enforcement.

“Every American still has the right to their privacy, especially when it comes to very private and personal health information,” HHS Secretary Xavier Becerra said at a press briefing Monday.

“Please make no mistake… when you access care, when you go to the doctor, when you enter a hospital, when you consult a medical professional and provide – because you are asked or requested – very personal health information, that information is entitled to protection federal law, perhaps even state law. But under federal law, you have the right to your privacy. That’s what it’s about today,” he said.

OCR Director Melanie Fontes Rainer said this rule applies in states where the reproductive health service in question is legal. She added that the rule is intended to help women who travel out of state receive reproductive health services such as abortions – both surgical and medical.

Both the out-of-state provider and the patient’s in-state provider who did not provide the reproductive health services but may have these records will be protected by this rule and may refuse requests to release the information.

If a person travels out of state to receive care that is not legal in their home state, the final rule includes a presumption for providers that the services their patients received out of state were legal.

Although Democratic lawmakers called on the administration to include a requirement that law enforcement obtain a warrant to request patient records, the final rule did not include this provision. Sources Rainer said these records would still work under the “existing HIPAA Privacy Rule.”

Under HIPAA, providers are prohibited from sharing protected health information in response to a subpoena unless certain conditions they are first satisfied.

Noting the rule’s limitations, as it does not apply in states where abortion is prohibited, Becerra said, “We have no illusions that whatever the president has urged us to do with our authorities will undo Dobbs.”

“If your privacy could be violated simply by trying to get the health care you need, or if your medical professional tells you that you need it, that puts at risk the fact that you feel comfortable receiving that health care,” he said. Becerra. “This is like an episode from 1984. It’s as Orwellian as it gets.”

Updated at 12:36 pm EDT