Biden administration proposes to strengthen patient privacy for those seeking abortions

WASHINGTON — The Biden administration is trying to enhance the federal law that guards patient privacy to further protect those who seek legal abortion care and other reproductive health care services. 

The announcement comes amid two major ongoing federal court cases dealing with access to the abortion pill and fears that the pill’s U.S. Food and Drug Administration approval could be suspended. Numerous states also have moved to limit or ban abortions following the U.S. Supreme Court’s decision last year to overturn Roe v. Wade, or are considering new abortion laws.

The proposed rule from the U.S. Department of Health and Human Services’ Office for Civil Rights, released Wednesday, is meant to strengthen the Health Insurance Portability and Accountability Act, or HIPAA. 

“Protecting individuals’ health information has taken on a critical importance following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization,” said a senior administration official, who provided background information on the proposed rule in a call with reporters on Tuesday night.

The proposed rule “would prohibit doctors, other health care providers, and health plans from disclosing individuals’ protected health information, including information related to reproductive health care, under certain circumstances,” according to a fact sheet from the Biden administration. 

“Specifically, the rule would prevent an individual’s information from being disclosed to investigate, sue, or prosecute an individual, a health care provider, or a loved one simply because that person sought, obtained, provided, or facilitated legal reproductive health care, including abortion,” the fact sheet says. 

Dueling rulings

The abortion pill cases in the courts are related to access to the medication mifepristone.

U.S. District Court for the Northern District of Texas Judge Matthew Joseph Kacsmaryk ruled Friday, April 7, to overturn the FDA’s 2000 approval of mifepristone, which is approved for use up to 10 weeks into a pregnancy. 

Kacsmaryk put a seven-day delay in his ruling, leaving mifepristone on the market until at least Friday, April 14, at midnight, or until another court ruling.

The U.S. Justice Department has since filed an appeal to the 5th Circuit Court of Appeals in New Orleans and asked the court to put the Texas ruling on hold pending an appeals process that’s likely to end up at the U.S. Supreme Court. 

U.S. District Court for the Eastern District of Washington Judge Thomas Rice issued a separate ruling Friday, just minutes after the Texas order, that barred the FDA from changing “the status quo and rights as it relates to the availability of Mifepristone” in the 17 states and District of Columbia that filed a lawsuit about the pharmaceutical in his court. 

The U.S. Justice Department has asked Rice to clarify his ruling, saying it “appears to be in significant tension” with the Texas opinion. 

Bolstering privacy rules

The new proposed rule from HHS released Wednesday is designed to bolster current HIPAA privacy regulations, according to a senior administration official. 

The official who spoke on background Tuesday ahead of the official announcement noted that HHS currently has guidance that tells health care providers and insurance companies that HIPAA disclosures are “permissible, meaning you can say no to them.”

“This rule actually goes a step further than that because we found that even with the permissible disclosures, some providers get fearful when they receive a subpoena, or they might feel like they have to turn the information over,” an official said. 

“HIPAA covers a range of providers from small, medium, to large, and while larger systems, or larger provider groups may have a privacy officer, or more sophisticated systems, we know small and medium-sized providers likely don’t,” the official added. 

“And so they’re very reliant on our guidance and rules. And so this is helpful in that it gives them the ability to not provide that information, if it’s not for the specific purpose articulated in the rule.”

In a second fact sheet released Wednesday, the Biden administration criticized the Texas judge for taking the “dangerous step of attempting to override FDA’s approval of medication abortion — which is used not only for abortion but also for helping women manage miscarriages.”

“This lawsuit is part of broader efforts to ban abortion nationwide and to prevent women from making their own decisions about their own bodies without government interference,” the administration wrote. “The Administration is fighting this ruling in the courts, and stands by FDA’s scientific and evidence-based judgment that mifepristone is safe and effective.”