Senators Call for HIPAA Privacy Rule Change to Prohibit Disclosures of Reproductive Health Care Information to Law Enforcement

The HHS’ Office for Civil Rights has recently issued guidance to healthcare organizations following the overturning of Roe v. Wade following the SCOTUS Dobbs v. Jackson Women’s Health Organization ruling, which removed the right to abortion at the federal level and allowed states to set their own laws. The guidance explained how the HIPAA Privacy Rule permits disclosures of protected health information – including reproductive health care information – to law enforcement but does not require such disclosures. OCR explained in the guidance when such disclosures of reproductive health care information would be considered HIPAA violations under the HIPAA Privacy Rule.

Two U.S. senators – Michael F. Bennet (D-Co) and Catherine Cortez Masto (D-NV) – recently wrote to the Secretary of the Department of Health and Human Services, Xavier Becerra, calling for the HHS to go further and make an update to the HIPAA Privacy Rule to ensure that the private and confidential health information of patients seeking reproductive healthcare is better protected.

“The [SCOTUS} decision has created profound uncertainty for patients concerning their right to privacy when making the deeply personal decision to have an abortion,” explained the senators in the letter. “We write to urge the Department of Health and Human Services (HHS) to take immediate steps to protect the privacy of Americans receiving reproductive health care services by updating the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule.”

The senators pointed out that at the time HIPAA was signed into law in 1996, Roe v. Wade had already upheld the right to abortion for more than two decades, and when the Privacy Rule was added to HIPAA in 2000, it was unthinkable that Roe v. Wade would be overturned two decades later. The senators praised the efforts of the HHS in issuing prompt guidance on the privacy of medical information relating to abortion and other sexual and reproductive health care and also for issuing guidance to consumers on protecting health information on mobile devices but believe that the HHS needs to go further.

Please see the HIPAA Journal Privacy Policy

“We urge HHS to immediately begin the process to update the Privacy Rule, following all requirements under the Administrative Procedure Act, to clarify who is a covered entity and to limit when that entity can share information on abortion or other reproductive health services,” explained the senators. The senators specifically requested the HHS clarify that reproductive health care information cannot be shared with law enforcement agencies who target individuals who have an abortion, and have requested the HHS rule that Pregnancy Care Centers (aka Crisis Pregnancy Centers) are required to comply with the HIPAA Privacy Rule.

“Following the Supreme Court’s decision in Dobbs, millions of Americans have lost a fundamental constitutional right to make their own health and reproductive decisions. We must do all that we can to protect their fundamental right to privacy,” concluded the senators.

Author: Steve Alder has many years of experience as a journalist, and comes from a background in market research. He is a specialist on legal and regulatory affairs, and has several years of experience writing about HIPAA. Steve holds a B.Sc. from the University of Liverpool.