This change would protect info on patients’ abortions. AG Raúl Labrador hopes to stop it

A proposed change to federal medical privacy laws would make it harder for law enforcement agencies to obtain information about abortions in states where the procedure is legal. But Idaho Attorney General Raúl Labrador hopes to stop that change.

Labrador joined 18 other attorneys general to oppose the proposed change to the Health Insurance Portability and Accountability Act (HIPAA), which would bar health providers, insurers and other entities regulated by HIPAA from sharing health information with agencies investigating abortions.

Currently, entities regulated by HIPAA can disclose health information related to abortion in response to a law enforcement investigation or court summons. But President Joe Biden’s administration, through the Department of Health and Human Services, is moving to protect that information amid a surge in abortion restrictions. The U.S. Supreme Court allowed states to ban the procedure in last year’s Dobbs v. Jackson Women’s Health Organization decision, a ruling that overturned Roe v. Wade and longstanding federal protections on abortion rights.

The attorneys general argued that the proposed rule change defies HIPAA’s decades-old privacy standards — which balance the protection of health information against disclosures needed to enforce laws and maintain public health — and the U.S. constitutional system, which gives states the right to enforce public health policy. The rule change also sidesteps federal rulemaking standards, the state attorneys argued.

“The Biden administration has pushed a false narrative that states are seeking to treat pregnant women as criminals or punish medical personnel who provide lifesaving care,” Emily Kleinworth, a spokesperson for Labrador, told the Idaho Statesman by email. “The ability to set public health policy is a state power, meant to keep consumers and patients safe against public health violations.”

Abortion privacy ‘hugely important’ for Idaho

After the Dobbs decision, Idaho enacted some of the most restrictive abortion laws in the country. The state outlawed the procedure, with exceptions for when the life of the pregnant patient was in danger or the pregnancy was the result of incest or rape that had been reported to law enforcement.

Still, Idaho residents have continued to seek abortions. Data compiled by U.S. Sen. Maria Cantwell, D-Washington, showed a 56% increase in abortion patients from Idaho between January and May when compared with the same time period the previous year. Research from the Society of Family Planning also found abortion rates increased in Oregon after the Supreme Court ruling.

The proposed HIPAA change would prevent Washington and Oregon medical providers, insurers and other entities regulated by the federal law from sharing patient information about reproductive care with Idaho authorities.

“Obviously this is hugely important for patients in states like Idaho that are already being forced to go across state lines (for abortions),” Lisa Humes-Schulz, vice president of policy and communications at Planned Parenthood Alliance Advocates, told the Statesman in an interview.

Humes-Schulz said Labrador’s stance on the rule change is especially concerning in light of Idaho’s “abortion trafficking law,” which makes it illegal to help a minor have an abortion by traveling to another state or obtaining abortion-inducing medication without the consent of a guardian.

“The attorney general has made it pretty clear that he wants to use this (out-of-state abortion) information to enforce this law,” Humes-Schulz said. “This rule is about as basic as it gets when it comes to patient privacy and safety.”

AGs: Rule change ‘fearmongering’ by Biden

Mississippi Attorney General Lynn Fitch led the group of 19 state attorneys opposing the federal rule change during the Department of Health and Human Services’ comment period. Nearly all of those who signed onto the letter hail from states that severely restricted abortion access following the overturning of Roe v. Wade.

“The proposed rule defies the governing statute, would unlawfully interfere with states’ authority to enforce their laws and does not serve any legitimate need,” the attorneys general commented.

HIPAA already offers “substantial safeguards” for protecting privacy, Kleinworth said, and generally bars disclosing personal health information without a patient’s consent, except in limited circumstances, such as in response to court orders.

“Disrupting that balance by preventing disclosure of (personal health information) in response to valid law enforcement requests, court orders, or oversight activities would unduly jeopardize public safety and make many operations of the health care system impossible,” Kleinworth said. “The state of Idaho’s authority to enact and enforce laws furthering public health interests does not depend on federal bureaucrats’ say-so.”

The proposed rule acknowledges that HIPAA currently doesn’t place conditions on the disclosure of information based on the type of health care a patient receives.

“However, the primary reasons behind this rulemaking are the risks to privacy, patient trust, and health care quality that occur when it is the very act of obtaining health care that subjects an individual to an investigation or proceeding, potentially disincentivizing the individual from obtaining medically necessary health care,” the rule says.

The suggestion that states will “weaponize” the Dobbs decision to investigate women seeking lawful abortions is “fearmongering” without evidence, the attorneys general wrote.

Labrador previously wrote a legal opinion arguing that Idaho’s abortion ban prohibits Idaho doctors from referring patients out of state for a legal abortion. He later rescinded the opinion but hasn’t disavowed it. Two Idaho family doctors in an ongoing lawsuit have asked a federal court to block prosecutors from enforcing Labrador’s interpretation of the law.

Kleinworth did not respond to a question from the Statesman about whether Idaho is currently collecting health information related to abortions in other states.

The attorneys general also critiqued the proposed rule change’s “broad definition” of reproductive health care, which includes “health care related to reproductive organs, regardless of whether the health care is related to an individual’s pregnancy or whether the individual is of reproductive age.”

The Biden administration could use the new rule to obstruct state laws barring gender-affirming care for transgender minors, the attorneys suggested. Idaho GOP lawmakers and Gov. Brad Little this year enacted a law criminalizing gender-affirming care for minors. Labrador also supported the legislation.

Humes-Schulz said her organization is “confident” that the rule change will take effect. She said Labrador and the other attorneys general who signed on to the comment have added to anxieties about reproductive health care.

“People are afraid to seek care and afraid to talk to their providers,” she said. “No one should have to be scared that their private medical information will be shared with the state of Idaho.”