Conservative Attorneys General Want Your Private Reproductive Health Information
It's so they can prosecute abortions.
You may know that when you go to the doctor, your privacy is protected by a law called HIPAA, the Health Insurance Portability and Accountability Act. HIPAA has a ton of different parts, but you may be most familiar with its privacy protections, which essentially say that an identifiable individual’s health information cannot be disclosed by health workers, hospitals, insurance companies, etc unless the patient gives permission, or if law enforcement or a court requests that information. It’s that last bit that poses a potential problem, now that conservative states are criminalizing reproductive health care — abortion at the moment, very possibly some forms of contraception and some fertility treatments in the future.
The Biden administration is trying to strengthen HIPAA protections for reproductive health, so that law enforcement officials can’t just go digging willy-nilly into women’s health records. A proposed new rule is a fairly minor but important change: Health care providers and others covered by HIPAA would not be permitted to turn over information about a person’s abortion to state officials, if those officials are using those records to investigate or potentially prosecute those who seek or provide abortions; if law enforcement wants that information, they have to get a subpoena, administrative request, or other court order.
To be clear, this rule is pretty weak — subpoenas aren’t exactly difficult for law enforcement to get. Many Democrats are, rightly, arguing that if state agencies want to go spelunking in your medical records, they need to get a warrant, which requires that they demonstrate probable cause that their search will turn up evidence of illegality. That seems like the correct standard at minimum, and it’s a shame that the Biden rule doesn’t go as far as necessary. Because this is already happening:
“I’ve been investigating pharmacy chains for the last two months on their privacy practices, and I can tell you that health care providers are turning over Americans’ sensitive health records without a warrant every single week,” Sen. Ron Wyden of Oregon told POLITICO. “And, for the most part, the patients are never going to be told that the information was turned over. That’s why this rule is so unacceptable. We’re talking about uterus surveillance.”
But Republicans are objecting even to this tiny change.
Over and over again, the anti-abortion movement claims it has no interest in prosecuting women for abortion. This isn’t true. They have already tried to pass laws that would impose criminal penalties on women who end pregnancies. And it simply makes no sense to argue that abortion is murder, but women who seek abortions should be in the legal clear. The reality is that prosecuting women for abortion is politically unpopular, and that’s the only reason it’s not happening yet on a wide scale. Republican attorneys general want the ability to easily investigate abortions as crimes because they are looking toward a future where abortion is a crime for which women are punished.
Of course they don’t say this. Via POLITICO, here’s what the Republican Attorneys General claim in their letter opposing the HIPAA expansion:
“Suppose that state officials had reason to believe that an abortion provider deliberately performed an abortion in violation of state law, resulting in serious injury to the woman, and that the provider then falsified medical records and referred the woman to an out-of-state provider to cover it up,” the Attorneys General write. “State officials would clearly have a basis to investigate that provider.”
If state officials have a clear basis to investigate, they will still be able to investigate even with a HIPAA expansion. Frankly I wish they weren’t, and this hypothetical is pretty specious, but the truth is that a HIPAA expansion is not a law saying “police cannot investigate abortions ever.” If law enforcement were investigating criminal activity, they would have the option to subpoena the information they need, which honestly seems like far too lax a requirement. Even under the stronger version of the law being pushed by many Democrats, law enforcement can still do their jobs. They just have to demonstrate that their desire to engage in a profound privacy violation has some legitimate basis.
One thing I’ve learned from following and writing about the anti-abortion movement for more than a decade is that it’s a pretty straightforward and predictable ecosystem. There are the savvy national groups, who are excellent at using Orwellian language to soften or straight-up lie about the legislation they’re writing and passing; there are the Republican legislators whose views on abortion range from callous indifference to a deep and all-encompassing desire to put women back in our place by any means necessary, but nearly all of whom are willing to jump on board with the demands of these big national anti-abortion groups; and then there are the smaller anti-abortion organizations which are routinely much more radical, much less savvy about using the right language, and will flat-out tell you where the movement is headed. These are important groups to watch; they are the window into the future of the movement.
Jessica Valenti, who writes the must-read newsletter Abortion, Every Day, took a look at what anti-abortion groups large and small are saying about abortion prosecutions and the proposed HIPAA rule. And this is from Roger Severino, VP of domestic policy at the Heritage Foundation:
“If someone says, ‘I’m going to kill myself’ or ‘I’m going to kill somebody else,’ medical providers are allowed and in some cases required to disclose that information to law enforcement. But if there’s an imminent threat to an unborn person in a pro-life state, this rule would prohibit the provider from disclosing that information to save that life.”
As Jessica points out, this isn’t just an argument against expanding HIPAA protections. It’s an indication that anti-abortion groups want to make all healthcare workers mandatory reporters who are legally required to rat out any woman or girl who so much as considers ending a pregnancy.
Abortion rights proponents have long argued that abortion rights are, in large part, about privacy. Abortion rights opponents have countered that the debate is about life. Well, this argument seems to fit pretty squarely in the privacy realm, and look at who is advocating for more patient privacy, and who is advocating for more prying eyes into your medical files.
The proposed HIPAA expansion, by the way, wouldn’t even get close to adequately protecting abortion records. It would just require that state officials have some reason why they’re going fishing into private medical information. That’s it. And that’s a bar that Republicans apparently don’t want to clear.
I’m guessing that most readers of this newsletter support abortion rights. But even if you don’t, or if you’re wishy-washy on the abortion question, you should ask yourself how you feel about the principle of medical privacy. Should patients have their medical records protected? Should law enforcement have to show some reason why they want to dig into private patient files? Do you want to live in a country where women wind up behind bars for seeking out a procedure that one in four will have in her life?
That is the country conservatives are building. And it doesn’t sound like a very nice place to live.
xx Jill