Abortion Privacy Rule Risks Legal Challenge From States, Doctors

New abortion protections from the Biden administration are likely to draw lawsuits from state attorneys general and physicians as the Justice Department continues to face legal fights over reproductive services.

The abortion protections come in the form of a US Department of Health and Human Services rule released April 22 stating federal privacy law blocks health-care providers from giving law enforcement patient information on legally obtained reproductive services.

Some attorneys say the rule advances a proper application of health privacy law in a time when various state restrictions on abortion are complicating patient care.

Others say the rule puts medical providers in the impossible position of having to either defy subpoenas or violate federal law, putting health-care professionals on the hook for criminal charges or professional ruin.

Most agree the rule is ripe for legal challenges.

“I would be shocked if states did not respond by filing lawsuits to protect their right to enforce state laws,” said Eric Kniffin, a fellow at the Ethics and Public Policy Center. “I would imagine that state attorney generals are already contemplating what steps they will take to protect their ability to enforce state health and welfare laws.”

Issued by the HHS’ Office for Civil Rights, the rule strengthens the protections of the Health Insurance Portability and Accountability Act of 1996 and prohibits regulated health providers from sharing health information that could be used against someone seeking or obtaining reproductive services in states where they’re legal.

It marks the Biden administration’s latest maneuver to counter the US Supreme Court’s 2022 Dobbs v. Jackson Women’s Health Organization decision, which stripped the federal right to abortions and spurred a slew of state restrictions and legal challenges.

The justices heard a case Wednesday over whether the Biden administration’s view that the Emergency Medical Treatment and Labor Act (EMTALA) requires abortions in emergency situations trumps Idaho state restrictions on the procedure. The administration has waged a similar battle with Texas over the state’s own law.

The Biden administration’s interpretation of EMTALA rests on “very strong legal grounds,” according to Greer Donley, a law professor at the University of Pittsburgh, who said she was “shocked” when states began challenging the law. And just as anti-abortion advocates tried to reframe the EMTALA issue as being about states rights, Donley said “that exact issue is going to certainly come up with HIPAA.”

“The rule is really about the relationship between HIPAA the federal law and kind of state criminal laws,” Donley said. “HIPAA would just be a continuation of all the arguments that they’re making with EMATLA. They’ll be kind of different, but it’s all about preemption.”

The rule also comes as the Biden administration defends Food and Drug Administration decisions on who can access the abortion drug mifepristone in a case currently before the Supreme Court.

‘Chilling Effect’

According to the Guttmacher Institute, over a dozen states have a total abortion ban. Data from the Guttmacher Institute also found that in the first half of 2023, nearly 1 in 5 abortion patients traveled beyond state lines to obtain care.

The HHS rule would essentially protect a woman living in a restrictive state who travels to a more liberal state for abortion services. The rule does so by clarifying that medical providers don’t need to provide patients’ records to law enforcement for investigative purposes.

The need to protect records is a “nascent problem” that “we can anticipate will continue to grow,” said Nicole Huberfeld, health law professor at Boston University.

Generally, when there’s a subpoena, HIPAA gives providers discretion to disclose health information, Huberfeld said. But she noted that sometimes a subpoena is a “fishing expedition” rather than “a specific request supporting an actual prosecution.” Health-care providers often don’t know the difference and will turn over information even if they don’t need to, she said.

The HHS didn’t respond to questions about how often the agency is hearing reports of law enforcement targeting records and the magnitude of the issue.

The rule is “about addressing the chilling effect more than the actual number of cases about enforcement,” according to Sabrina Talukder, director of the Women’s Initiative at the Center for American Progress.

“For me, as a former public defender, that’s a trend that we always see with the criminalization of anything, whether it’s sex work, marijuana. It’s not actually about the number of cases that law enforcement does. It’s really about the far-reaching consequences,” Talukder said.

Likely Legal Action

Some attorneys warn the rule is federal overreach and unfairly puts doctors at risk.

For physicians, the rule is “grossly unfair, and bullying,” said Roger Severino, who led the HHS’ OCR in the Trump administration.

“I expect lawsuits to come fast and furious, because the rule is so extreme in threatening to jail medical providers who comply with lawful state search warrants,” Severino said. “I would expect doctors would go to the courts seeking protection. And many of them are really just caught in the middle.”

Now with the Heritage Foundation, Severino said lawsuits might focus on the Administrative Procedure Act, arguing that the rule is arbitrary and capricious and exceeds statutory authority. He added doctors could claim they were harmed given “the potential of being jailed unjustly” under HIPAA. States, meanwhile, could raise federalism arguments.

With the rule, the Biden administration has “announced their intentions that doctors comply with search warrants related to abortion at their peril. And that’s such an abuse of law. It was never meant to result in such a thing. Congress never said that abortion has some sort of special protection under HIPAA,” Severino said.

Ethics and Public Policy Center fellow Kniffin takes issue with the rule, noting that state attorneys general will likely sue as their ability to conduct law enforcement will be compromised.

“HHS claims that HIPAA forbids hospitals from simply complying with a court-issued subpoena. According to HHS, law enforcement must first sit down and convince the doctor that the health care in question was illegal,” said Kniffin, who was an attorney in the Civil Rights Division of the Department of Justice in the George W. Bush and Barack Obama administrations.

“To force law enforcement to navigate additional hurdles is strange.”

However, Jodi Daniel, a partner at Crowell & Moring LLP, said the OCR noted in the rule that law enforcement can be held criminally liable for violations.

And while she wouldn’t rule out legal challenges to the rule, she said the OCR “acted within its authority and was careful in the policy decisions it made to be able to withstand such a challenge.”