Biden’s Reproductive Health Executive Order Outlines Patient Privacy Protections

President Biden released an “Executive Order on Protecting Access to Reproductive Healthcare Services,” which addressed patient privacy protections and stressed the importance of abortion access in light of the Supreme Court’s recent decision to overturn Roe v. Wade.

“Eliminating the right recognized in Roe has already had and will continue to have devastating implications for women’s health and public health more broadly,” the executive order stated.  

“Access to reproductive healthcare services is now threatened for millions of Americans, and especially for those who live in States that are banning or severely restricting abortion care.”

The executive order outlined how the Biden Administration would safeguard access to reproductive health services by protecting access to contraception and medication abortion, as well as ensuring emergency medical care and launching public education efforts.

On the patient privacy front, Biden addressed growing concerns about data privacy and deceptive data practices.

“The President’s Executive Order takes additional steps to protect patient privacy, including by addressing the transfer and sales of sensitive health-related data, combatting digital surveillance related to reproductive health care services, and protecting people seeking reproductive health care from inaccurate information, fraudulent schemes, or deceptive practices,” the executive order fact sheet said.

First, the executive order stated that the President had asked the Chair of the Federal Trade Commission (FTC) to “consider taking steps to protect consumers’ privacy when seeking information about and provision of reproductive healthcare services.”

President Biden also directed the HHS and FTC Secretaries, along with the Attorney General, to address fraudulent or deceptive online practices to protect access to accurate information about abortion care.

“HHS will consider additional actions, including under the Health Insurance Portability and Accountability Act (HIPAA), to better protect sensitive information related to reproductive health care,” the fact sheet continued.

“The Secretary of HHS has already directed the HHS Office for Civil Rights to take initial steps to ensure patient privacy and nondiscrimination of patients, as well as providers who provide reproductive health care.”

HIPAA has faced significant criticism in the weeks following the Supreme Court decision, even prompting two US Senators to write a letter to HHS asking it to consider updates to the HIPAA Privacy Rule to safeguard patient privacy and reproductive rights.

The Executive Order pointed to the HHS Office for Civil Rights’ (OCR) recently released guidance, which outlined how and when covered entities are required or permitted to disclose patient information.

“The guidance helps ensure doctors and other medical providers and health plans know that, with limited exceptions, they are not required – and in many cases, are not permitted – to disclose patients’ private information, including to law enforcement,” the fact sheet stated.

OCR also released guidance for consumers on actions they can take to ensure privacy while using personal mobile devices and tablets.

The Executive Order underscored plans to establish an interagency task force on reproductive care access, which will coordinate assistance to states offering legal protection to out-of-state patients and providers.

As reproductive health access concerns heighten, patients, providers and regulators are increasingly turning their focus toward data privacy and safeguarding sensitive health information to avoid legal repercussions.