Biden admin to shore up HIPAA to protect abortion seekers and providers

The Biden administration is updating the nation’s main health privacy law to offer stronger legal protections to people who obtain abortions in their state or who cross state lines for the procedure, as well as their doctors and loved ones.

The Department of Health and Human Services’ Office for Civil Rights on Wednesday will issue a Notice of Proposed Rulemaking to bar health care providers and insurers from turning over information to state officials for the purpose of investigating, suing or prosecuting someone for seeking or providing a legal abortion.

The new rule adding language to the Health Insurance Portability and Accountability Act — commonly known as HIPAA — would cover both people who cross state lines to obtain a legal abortion or who qualify for an exception to their home state’s ban, such as in cases of rape, incest or life endangerment.

The move, a longtime ask of abortion-rights advocates and Democratic lawmakers, comes just days after a Texas court ruling threatening access to the abortion pill — the most common method for ending a pregnancy. Vice President Kamala Harris will meet Wednesday afternoon with the White House’s Task Force on Reproductive Health Care Access to discuss the new HIPAA rule and other potential responses to the court decision.

During a call with reporters on the new rule Tuesday night, a senior administration official said that while the agency released guidance when Roe fell last June telling doctors they do not have to comply with demands for information from law enforcement or state officials about a patient’s abortion, they have gotten feedback from health providers and advocacy groups that a clearer and more binding rule would offer better protection.

“We found that even with the permissible disclosures [policy], some providers get fearful when they receive a subpoena or they might feel like they have to turn the information over,” said the official, granted anonymity as the condition for the briefing on the new rule.

That chilling effect, the official added, is also affecting pregnant patients and causing them to avoid the medical system entirely.

“They're scared, they are concerned about their medical information being misused and disclosed,” the official said. “As a result, individuals may hesitate to interact with providers, health plans, pharmacies or related health applications out of fear that their data will be tracked or shared inappropriately.”

The agency will take public comment on the proposed rule for the next 60 days, and will then issue a final rule.

Democratic lawmakers and abortion-rights advocates have been pleading with the Biden administration for months — beginning before Roe was overturned — to take this step, and the calls have grown louder as conservative states ramped up enforcement of their anti-abortion laws.

In January, Democrats in Congress introduced the Secure Access for Essential Reproductive (SAFER) Health Act that would have made similar updates to HIPAA with respect to abortions and miscarriages, but the bill has not moved in either chamber.