Washington, D.C. – Today, U.S. Senators Catherine Cortez Masto (D-Nev.) and Michael Bennet (D-Colo.) called on the Biden Administration to update the Privacy Rule under the Health Insurance Portability and Accountability Act (HIPAA) to protect the privacy of patients who receive abortions from infringement by law enforcement agencies. Following the U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, the U.S. Department of Health and Human Services (HHS) must take further action to protect the privacy of Americans and their medical information.
“When HIPAA was signed into law in 1996, Roe v. Wade had upheld the right to an abortion for over two decades. When the HIPAA Privacy Rule was issued in 2000, it would have been unimaginable that the Supreme Court would strip away this fundamental right more than 20 years later,” wrote the senators in their letter to HHS Secretary Xavier Becerra.
The Privacy Rule defines and limits when an individual’s protected health information may be used or disclosed by covered entities, like health care providers and insurers. Currently, HIPAA does not prevent the disclosure of protected health information, including information related to abortion and other reproductive health care, to law enforcement agencies. HIPAA permits covered entities to disclose this information if issued in a court order, a court-ordered warrant, a subpoena, or a summons. For patients living in states criminalizing reproductive health services, the Privacy Rule does not offer enough protection and jeopardizes the patient-provider relationship.
Some entities, like Crisis Pregnancy Centers, which offer limited medical services, are not required to follow the HIPAA Privacy Rule at all. These entities often do not include abortion as a viable medical option, even in the case when the mother’s life is at risk, and should be required to follow the same patient protection measures as all other providers.
The senators are urging HHS to immediately begin the process to update the Privacy Rule to clarify who is a covered entity, limit when that entity can share information on abortion or other reproductive health services, and make clear that reproductive health information cannot be shared with law enforcement agencies that target individuals who have an abortion. The senators also urge HHS to determine that Crisis Pregnancy Centers are required to follow requirements of the Privacy Rule.
The senators concluded: “The decision to start or expand a family is intensely personal and private. When patients speak with their providers about options for contraceptives, the progression of their pregnancy, or their choices to terminate a pregnancy, they expect those conversations to remain confidential. The individual liberty to make those decisions, and the conversations surrounding them, must be protected.”
The full text of the letter is available here.
Although abortion is protected by law in Nevada due to a 1990 referendum that enshrined it in statute, a Republican Congress could enact laws to restrict abortion nationwide. Senator Cortez Masto has been a tireless advocate for reproductive rights in the U.S. Senate. From the beginning, she raised the alarm about the danger the Dobbs case represented to Roe v. Wade and joined Congressional colleagues in filing a brief in the case urging the Supreme Court to uphold Roe. She has repeatedly called on Congress to do more to protect women’s health care by passing the Women’s Health Protection Act, legislation she cosponsored to guarantee equal access to abortion everywhere. She was a vocal opponent of the Trump administration’s efforts to limit access to family planning and reproductive health care and worked to block federal court nominees who would roll back women’s health care and reproductive freedoms.