24 Attorneys General Express Support For Bolstering Reproductive Care HIPAA Protections

The Biden Administration recently proposed amendments to HIPAA that aim to protect patients and providers from prosecution in relation to the provision of reproductive healthcare. In response to the administration’s request for public comments, New York Attorney General Letitia James and California Attorney General Rob Bonta led a coalition of 24 attorneys general in filing a comment letter to express their support of these increased protections and commend HHS’ efforts.

The letter stated that “the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has created a climate of uncertainty and fear in the provision of reproductive health care throughout the country.”

“At the same time, rapid technological advances have transformed how health care providers and individuals collect and store their personal health information, including reproductive health data. Existing privacy protections have not kept up with these changes and fail to contemplate circumstances in which basic health care is subject to civil liability and criminal penalties,” the letter continued.

The attorneys general urged HHS to move swiftly to issue a final rule and solidify these protections for patients and providers. Specifically, the amendments would make it illegal to use or disclose protected health information (PHI) for an investigation into a patient in connection with seeking reproductive care if that patient is seeking care in a state where abortion is legal, or if the patient is seeking care that is protected under federal law.

The attorneys general suggested that the drastically shifting legal landscape calls for more robust privacy protections for reproductive care, as states now have the power to decide the legality of abortion for themselves.

“The hostile and fragmented reproductive health care landscape heavily burdens patients in need of health care,” the letter continued.

“Reports continue to emerge—even in states with abortion bans that include exceptions for the health or life of the pregnant person—of patients with serious pregnancy complications being denied care or forced to wait until they are ‘sick enough,’ and often enduring unnecessary pain and life-threatening complications, to justify pregnancy termination.”

Considering this legal landscape, the attorneys general suggested that additional protections under the Privacy Rule would help protect against the improper disclosure of reproductive health information and help patients navigate these legal complexities.

To strengthen the rule further, the attorneys general suggested broadening the definition of “reproductive health” to go beyond fertility and pregnancy, providing a more inclusive definition that takes sexual identity, sexual activity, and family-planning into account.

“No one should have to worry about whether their health care information will be kept private when they go to the doctor to get the care they need,” said Attorney General James. “While anti-choice state legislatures across the nation are stripping away our reproductive freedom and seeking access to health care data, it is imperative that we take every measure to safeguard Americans’ privacy. I will always fight to defend abortion and ensure no one’s private right to choose can be used against them.”