Biden rule would hinder states from investigating out-of-state abortions. Here’s why Utah’s A.G. is opposed

What happens when someone travels to Oregon to get an abortion that is illegal in a different state?

The simple answer is nothing, according to legal experts that include U.S. Supreme Court Justice Brett Kavanaugh, who in his concurring opinion in the Dobbs v. Jackson Women’s Health Organization case wrote that interstate travel is a constitutionally protected right.

But 19 Republican attorneys general signed on to a letter last month pushing back on a proposed rule from the U.S. Department of Health and Human Services, or HHS, that would prevent the disclosure of protected health information related to reproductive health care in a criminal or civil investigation.

In short, if that out-of-state resident gets an abortion in Oregon, law enforcement in the home state would have a difficult time accessing those records under the proposed rule. HHS says the rule change would bolster privacy for people who travel to another state for health care that has been deemed illegal in their own state — including gender-related health care for minors and abortions.

Some attorneys general, including Utah’s Sean Reyes, take issue with the amendment, and signed the June 16 letter spearheaded by Mississippi Attorney General Lynn Fitch, whose lawsuit defending the state’s abortion law ultimately led to Roe being overturned. They claim the rule infringes on states’ rights to enforce their own abortion laws.

Fitch, in a press release, called the rule “the Biden Administration’s latest attempt to override the U.S. Supreme Court’s Dobbs ruling that protected the people’s right to make laws regulating abortion.”

The letter was part of the public comment period for the proposed rule, which means the U.S. Department of Health and Human Services will have to respond.

Why does Utah want information on out of state abortions?

The Utah Attorney General’s office, in an emailed statement to the Deseret News, says the rule “would upset that careful, decades-old balance of regulations that safeguard the privacy of individual health information while permitting disclosure of information to state authorities to protect public health, safety, and welfare.”

“The proposed rule defies the governing statute, would unlawfully interfere with states’ authority to enforce their laws, and does not serve any legitimate need,” wrote Richard Piatt, spokesperson for the office.

Piatt said the state is in part opposed to the change because it gives health care providers authority to determine what information is released, pointing to a section in the letter that claims the rule “improperly empowers regulated entities (health plans, clearinghouses, and providers) to determine whether ‘reproductive health care’ services are lawfully provided —and then to refuse compliance with state investigations and official proceedings.”

It’s state law-enforcement and government officials who should have that discretion, the office argues.

“By obstructing their ability to exercise it the proposed rule violates HIPAA and runs afoul of the constitutional design,” the letter reads.

Piatt also said the state has an interest in “monitoring the conduct of medical personnel who are licensed under their laws but act out of state.”

When asked if the office would prosecute people who travel out of state to get these procedures, Piatt declined to answer, saying he did not want to speculate.

“We certainly investigate and prosecute crimes in our jurisdiction. The AG’s Office is disinclined to speculate publicly what those crimes may be,” he said.

Andrew Beck, a senior staff attorney for the ACLU’s Reproductive Freedom Project, says states don’t need to prosecute people — the threat of prosecution, or even the notion that states are compiling data, could have a chilling effect.

“These are efforts to intimidate people from obtaining abortions in other states where it’s legal and intimidate people who are providing that care. It’s a threat in the form of a letter, that they’re going to be monitoring physicians,” he said.

The attempt to compile data on these individuals also has a murky legal standing. Utah can collect health care information in Utah — but what about in other states?

“Suppose the state of Utah says its health department can collect data about abortions all over the United States? I think it’s very questionable whether that’s legal,” said Leslie Francis, an attorney and professor at the University of Utah who specializes in HIPAA and federalism, or states rights.

“The problem would still be whether Utah can authorize by law the collection of data for public health purposes, about what happens in Colorado,” she said.

Legal minefield

Existing case law rooted in federalism suggests attorneys general would have a slim chance at actually prosecuting people for health care received out of state. Kavanaugh laid this out when he voted to overturn Roe in the Dobbs case.

“May a state bar a resident of that state from traveling to another state to obtain an abortion?” he wrote in his concurring opinion. “In my view, the answer is no based on the constitutional right to interstate travel.”

Experts liken it to traveling to Nevada to gamble, or to Colorado to purchase recreational marijuana. Hunting laws vary by state but residents are allowed to partake regardless of their home state. Traveling to other states for physician-assisted suicide is another parallel.

“It has been an assumption of U.S. federalism that states can criminalize what happens within their borders, but not outside. So Utah might prosecute me for smoking marijuana at my home in Utah, but it can’t prosecute me for smoking marijuana while I am on vacation in Colorado,” said Francis.

Anything less is “a recipe for undermining the whole concept of the American experiment,” said Beck with the ACLU.

“When people go to another state, they’re able to take part in the activities of that state when they visit and they shouldn’t fear intimidation, from extremist politicians when they’re doing so,” he said.

In Utah’s case, according to the attorney general’s office, the opposition to the rule is that it strips power from states, and gives too much authority to providers.

From a purely logistical standpoint, it would be difficult.

“Another complication here is whether Idaho could ask Colorado to extradite the Colorado doctor—that is, to send the doctor to Idaho for prosecution,” said Francis, noting that Colorado would normally extradite its residents if they’d committed a crime while in Idaho. “Presumably, Colorado wouldn’t cooperate. The doctor would of course need to be careful never to set foot in Idaho or Idaho might try to make an arrest.”

Would law enforcement agencies cooperate across state lines to serve a search warrant, or subpoena? Could a state try to prevent, or punish, people for crossing state lines if they know it’s to get an abortion?

The closest example is In Idaho, where lawmakers recently passed an “abortion trafficking” bill that criminalizes helping minors get an abortion out of state without their parents’ consent.

Whether that differs from prosecuting interstate travel is currently up for debate — the law is the subject of a current lawsuit, with activists saying it violates the Fourth Amendment and the right to travel freely between states.

Utah’s abortion trigger law, which would ban the procedure in the state except for cases of rape, incest or a medical emergency, is still on hold following a lawsuit from the Planned Parenthood Association of Utah and the ACLU Utah chapter.