The Biden administration finalized a rule this week that prevents medical records from being used in criminal investigations regarding women who leave their states to get an abortion.
The rule, which was issued through the Office for Civil Rights at the Department of Health and Human Services (HHS), bolsters existing regulations under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy rule.
“In states with strict abortion rules, the federal regulation would essentially prohibit state or local officials from gathering medical records related to reproductive health care for a civil, criminal or administrative investigation from providers or health insurers in a state where abortion remains legal,” the Associated Press reported.
HHS Secretary Xavier Becerra told reporters on Monday that the regulation has limitations and may face legal challenges.
“Until we have a national law that reinstitutes Roe v. Wade, we’re going to have issues,” Becerra said. “But that doesn’t stop us from doing everything we can to protect every American’s right to access the care they need.”
One limitation is that the regulation does not prevent criminal investigation into those who order abortion pills online. The rule also does not require law enforcement to obtain warrants for medical records.
“Instead, law enforcement can seek a subpoena, court order or an administrative request to obtain medical records,” according to the report.
The move on the federal level comes after at least 22 Democrat-controlled states passed laws or executive orders designed to shield abortionists and women from investigations in states with laws limiting abortion. Abortionists in some blue states are also shielded while they prescribe abortion pills via telehealth to women in states with laws protecting the unborn.
Nineteen Republican Attorneys General sent a letter to Becerra last year, objecting to the rule when it was still in its draft stage.
They wrote:
The Administration, however, has pushed a false narrative that States are seeking to treat pregnant women as criminals or punish medical personnel who provide lifesaving care. Based on this lie, the Administration has sought to wrest control over abortion back from the people in defiance of the Constitution and Dobbs.
The proposed rule here continues that effort. For over 20 years, HHS regulations have safeguarded the privacy of individual health information while permitting disclosure of information to state authorities to protect public health, safety, and welfare. The proposed rule would upset that careful, decades-old balance. The proposed rule defies the governing statute, would unlawfully interfere with States’ authority to enforce their laws, and does not serve any legitimate need. Relying as it does on a false view of state regulation of abortion, the proposed rule is a solution in search of a problem. And it reflects the same distortion of basic legal rules and democratic principles that pervaded abortion matters for decades before Dobbs.
The Associated Press noted that it is “not clear that public officials have sought those medical records of patients around abortion.”
