Senators Call for HHS to Change HIPAA Privacy Rule Following Dobbs Ruling

by | Jul 11, 2022

Two U.S. senators have written to Xavier Becerra, Secretary of the Department of Health and Human Services, requesting a change to the HIPAA Privacy Rule in the wake of the decision of the Supreme Court (SCOTUS) in Dobbs v. Jackson Women’s Health Organization and the overturning of the landmark case Roe V. Wade (1973).

For almost 50 years, women in the United States have had the right to an abortion, but that changed this year with the SCOTUS ruling. Abortions have not been banned, but the court ruled that there is no right to abortion conferred by the Constitution of the United States and, as such, any decision about the legality of abortions falls on individual states. There is concern that as many as half of U.S. states will introduce restrictions or bans on abortions, and more than a dozen already have.

Michael F. Bennet (D-Co) and Catherine Cortez Masto (D-NV) explained in their letter that the HIPAA Privacy Rule was introduced in 2000 at a time when the right to abortion had existed for three decades and that it was unthinkable at the time that the right would be taken away. The senators praised the actions of the HHS so far with respect to the SCOTUS ruling, which involved issuing guidance to healthcare providers and individuals on how the HIPAA Rules apply, and that the disclosure of reproductive health care information to law enforcement is permitted, but not required, by the HIPAA Privacy Rule. Guidance was also issued on how to improve privacy protections on cellphone and tablet apps, specifically regarding the use of fertility trackers and other apps that record information related to reproductive health.

The senators believe an update to the HIPAA Privacy Rule now needs to be made to better protect the privacy of individuals seeking reproductive health care services. “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. “Specifically, HHS should clarify that this information cannot be shared with law enforcement agencies who target individuals who have an abortion.”

There is concern that pregnancy care centers (aka crisis pregnancy centers) may feel compelled to disclose sensitive information about patients to law enforcement. The senators have requested the HHS determine that those entities 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.

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