In a significant yet under-the-radar pro-abortion move, President Biden has issued a Notice of Proposed Rulemaking (NPRM) to modify the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule. The proposed changes would add a new category of “reproductive health care” to include abortion, shield abortionists by prohibiting (under HIPAA) the release of protected health information (PHI) for criminal or civil investigations, and define “person” to exclude a human being in the womb (an embryo or fetus).
The proposed rule, published on April 12 by the Office for Civil Rights at the U.S. Department of Health & Human Services (HHS), could take effect soon now that the public comment period is coming to an end.
According to the HHS release, it “establishes requirements with respect to the use, disclosure, and protection of protected health information (PHI) by HIPAA covered entities (health plans, health care clearinghouses, and most health care providers) and, where applicable, by their business associates.”
The proposal could impact law enforcement investigations, third party investigations in civil proceedings, state licensure proceedings, criminal prosecutions, and family law proceedings.
Alliance Defending Freedom Senior Counsel Julie Marie Blake stated in response to the proposal:
The Biden administration’s proposed rule would undermine state laws that protect expectant mothers and their unborn children from the harms of abortion and unlawfully insert a federal right to abortion into privacy regulations. Additionally, the proposed rule seeks to make it impossible for states to protect children from a variety of dangerous and sterilizing procedures including puberty blockers, cross-sex hormones, and irreversible, life-altering surgeries.
The U.S. Supreme Court’s decision in Dobbs resoundingly affirmed that states—not unelected, unaccountable bureaucrats—should set abortion policy and be free to protect unborn life. This is just the latest example of the Biden administration grossly overstepping its authority in an attempt to impose its radical agenda on everyday Americans. We urge the administration to swiftly withdraw this harmful proposed rule.
Proposed Rule in Response to Dobbs
HHS claimed that the “Supreme Court’s decision in Dobbs on June 24, 2022, created new concerns about the privacy of PHI related to reproductive health care” since “states have taken actions, some tacitly and some explicitly, that could interfere with individuals’ longstanding expectations… with respect to the privacy of their PHI.”
“The Department is aware of reports that persons or authorities have reached or intend to reach beyond their own states’ borders to investigate reproductive health care that has been performed in other states where that health care is legal. These actions present new concerns nationwide for the protection of health information privacy mandated by HIPAA,” the proposal stated.
The “actions” they are likely referring to include abortion bans, trigger laws, pro-life Sanctuary City ordinances, civil enforcement laws such as the Texas Heartbeat Act, and possibly the federal Comstock Act. The Department claimed that “Under the Constitution, an individual cannot be barred from traveling from one state to another to obtain reproductive health care.”
The Proposal
“The new rule… 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,” Politico previously reported.
Disclosures of PHI would be “prohibited when the reproductive health care: (1) is provided outside of the state where the investigation or proceeding is authorized and where such health care is lawfully provided; (2) is protected, required, or authorized by Federal law, regardless of the state in which such health care is provided; or (3) is provided in the state in which the investigation or proceeding is authorized and that is permitted by the law of that state,” the proposed rule claimed.
According to the HHS press release “the prohibition would apply where the relevant criminal, civil, or administrative investigation or proceeding is in connection with one of the following:
- Reproductive health care that is sought, obtained, provided, or facilitated in a state where the health care is lawful and outside of the state where the investigation or proceeding is authorized.
- For example, if a resident of one state traveled to another state to receive reproductive health care, such as an abortion, that is lawful in the state where such health care was provided.
- Reproductive health care that is protected, required, or expressly authorized by federal law, regardless of the state in which such health care is provided.
- Reproductive health care that is provided in the state where the investigation or proceeding is authorized and is permitted by the law of the state in which such health care is provided.
“In these circumstances, the state lacks any substantial interest in seeking the disclosure. Protecting against disclosures of PHI in these circumstances thus directly advances the long-understood purpose of the HIPAA privacy protections without unduly interfering with legitimate state prerogatives,” the rule stated.
“Additionally, the Department’s proposal would prohibit the use or disclosure of PHI for use in an investigation into or proceeding against employees of the Department of Veterans Affairs (VA) who provide or facilitate reproductive health care in a manner authorized by Federal law,” it added.
The proposal defined “seeking, obtaining, providing, or facilitating” to include “expressing interest in, inducing, using, performing, furnishing, paying for, disseminating information about, arranging, insuring, assisting, or otherwise taking action to engage in reproductive health care, as well as attempting to engage in any of the same.”
Defining ‘Person” to exclude embryo, fetus
The proposal would deny the personhood of the preborn child despite their equal protections provided under the United States Constitution.
The Department proposes to “clarify the definition of ‘person,'” claiming “HIPAA does not define the term ‘person.'”
“By regulation, the Department has long defined ‘person’ for purposes of the HIPAA Rules to mean ‘a natural person, trust or estate, partnership, corporation, professional association or corporation, or other entity, public or private,’” the proposal stated.
“Thus, the Department proposes to clarify the definition of ‘natural person’ in a manner consistent with 1 U.S.C. 8,” the proposed rule reads.
What would that mean?
“The Department understands 1 U.S.C. 8 to provide a definition of ‘person’ and ‘child’ that is consistent with the Department’s understanding of that term, as it is used in the SSA, HIPAA, and the HIPAA Rules and does not include a fertilized egg, embryo, or fetus,” they wrote [emphasis added].
Defining “Reproductive Health Care” to include Abortion
“The HIPAA Rules define ‘health care’ as ‘care, services, or supplies related to the health of an individual,’” the proposal claimed. But the Department proposes to “add and define a new term, ‘reproductive health care,’ that is a subcategory of the existing term ‘health care’” and to define ‘reproductive health care’ as “care, services, or supplies related to the reproductive health of the individual,” to be “interpreted broadly and inclusive of all types of health care related to an individual’s reproductive system.”
Therefore, the Department would interpret “reproductive health care” to “include, but not be limited to: contraception, including emergency contraception; pregnancy-related health care; fertility or infertility-related health care; and other types of care, services, or supplies used for the diagnosis and treatment of conditions related to the reproductive system. Pregnancy-related health care includes, but is not limited to, miscarriage management, molar or ectopic pregnancy treatment, pregnancy termination, pregnancy screening, products related to pregnancy, prenatal care, and similar or related care.” (emphasis added)
“The Department would interpret fertility or infertility-related health care to include services such as assisted reproductive technology and its components, as well as other care, services, or supplies used for the diagnosis and treatment of infertility,” the proposal stated.
Impact on State Laws
If modified, “The Privacy Rule generally preempts contrary provisions of state laws,” the proposal claimed (emphasis added).
“Thus, if this NPRM were to be finalized, provisions of state law that are contrary to these proposals would be preempted,” it read, claiming that “disclosure of PHI to law enforcement in furtherance of a law enforcement investigation of an individual” or “disclosure of PHI for a law enforcement investigation of a health clinic” could be prohibited “even in response to a court order, such as a search warrant.”
“The Department recognizes that the proposal to prohibit uses and disclosures of PHI for a criminal, civil, or administrative investigation into or proceeding against any person, or to identify any person for the purpose of initiating such an investigation or proceeding, may create a conflict between the Privacy Rule and some state laws… In such cases, regulated entities would be required to comply with the Privacy Rule, if modified as proposed,” the rule states.
“Additionally, if a regulated entity chose to comply with the court order… there would be a presumption that a breach of unsecured PHI had occurred because there was a disclosure of PHI in a manner not permitted under the Privacy Rule which compromises the privacy of the PHI. Thus, breach notification would be required unless the entity could demonstrate that there was a low probability that the PHI had been compromised,” it adds.
Written Permission Required
The proposed rule would also require written permission before any PHI could be shared and would “require covered entities in certain circumstances to obtain an attestation from the person requesting the use or disclosure that the use or disclosure is not for a prohibited purpose.”
According to plaintiff’s attorney Mike Seibel, Senior Counsel at Abortion on Trial and Reproductive Injustice, this means written releases must be signed by the patients or entities before any information could be released.
“The proposed requirement to obtain a signed attestation would give regulated entities a way of confirming in writing that requests for PHI are not for a prohibited purpose,” the proposal said.
While privacy protections are generally important, history has shown that the abortion industry prefers to commit acts against preborn babies and sometimes their mothers surreptitiously, by leaning on alleged privacy for abortionists and women, despite failing to protect the privacy of their clients on multiple occasions.
