The Biden administration announced Wednesday that it’s moving to close a loophole in medical privacy laws that allows healthcare workers to report patients to the police if they suspect them of self-managing an abortion. The Health Insurance Portability and Accountability Act (HIPAA) doesn’t require healthcare workers to make these reports, but it doesn’t prevent them from doing so, either. The move comes amid a push from advocates and after reporting from Jezebel and others explained the dangers of the privacy loophole and the chilling effect it can have on health care in a post Roe v. Wade America.
The proposed rule—from the Department of Health and Human Services’ Office for Civil Rights—would add language to HIPAA to ban healthcare workers and insurance companies from sharing health information that would be “used to identify, investigate, sue, or prosecute someone for seeking, obtaining, providing, or facilitating lawful reproductive health care.” HHS spells out that reproductive healthcare includes, but isn’t limited to, prenatal care, abortion, miscarriage management, infertility treatment, and contraception use. Per a fact sheet, the proposed rule would cover people forced to travel to other states for abortions.
A senior administration official told reporters that the change is necessary because healthcare workers told them they wanted better legal protection. “We found that even with the permissible disclosures [policy], some providers get fearful when they receive a subpoena or they might feel like they have to turn the information over,” said the official, per Politico.
Matthew Cortland, a senior resident fellow at Data for Progress, told Jezebel in a statement: “The Biden Administration updating the HIPAA Privacy Rule to close, as much as possible, the loophole that allows for disclosure of protected reproductive health information is essential in the post-Dobbs hellscape the rogue U.S. Supreme Court has unleashed upon us. It’s also popular with the electorate.”
The Biden Administration’s move is especially crucial right now, as self-managed abortions stand to increase if a federal judge is successful at cutting off prescriptions of the abortion pill mifepristone. No matter what happens in that high-profile lawsuit, abortions won’t stop—providers will move to a different drug regimen, or people will get the pills from international services like Aid Access.
Healthcare workers already reported their patients to law enforcement while Roe was still on the books. An August 2022 report from If/When/How found that, in 61 cases where adults were investigated for pregnancy outcomes, 45 percent were reported to law enforcement by care professionals, including doctors, nurses, and social workers. In a horrifying example of just how real the risk is, about two weeks after Jezebel published our HIPAA story, a South Carolina woman was arrested for allegedly self-managing her abortion. The woman had gone to the hospital and told healthcare workers that she’d taken pills to end her pregnancy.
Previous polling from Data for Progress found that eighty percent of likely voters said they supported stronger enforcement of privacy laws when it comes to reproductive health records. And 63 percent of voters said they supported updating the HIPAA privacy rule, including majorities of Republicans and Independents.
Sens. Mazie Hirono (D-Hawaii) and Michael Bennet (D-Colo.) introduced a bill in February that would ban medical providers from disclosing information on abortion or pregnancy loss without patients’ consent in a court proceeding—meaning the bill stops short of a ban on sharing information with law enforcement and instead focuses on hampering prosecutions. Not only is that bill unlikely to pass the 50-50 Senate or Republican-controlled House, but this HHS rule change would be even more protective.
Biden’s proposed rule will be open for comments for 60 days, after which the administration will issue a final rule. So, for now, the old rules are still in place.
But for any healthcare worker reading this, please know that it’s unethical to narc on your patients—even if it may technically be legal. As Jamila Perritt, president and CEO of Physicians for Reproductive Health, told Jezebel in February, “We’re asking for medical spaces to be safe for the people that we care for, and we know that they are often sites of criminalization. [Sharing reproductive information with law enforcement] is misaligned with the oath that we took to do everything we can to keep our patients safe.”