New Biden HHS rule would ban sharing of abortion-related information with law enforcement

The Biden administration has proposed new privacy protections to prohibit the use of women’s health information for investigations or lawsuits regarding out-of-state abortions. The proposed rule would modify the Health Insurance Portability and Accountability Act of 1996 to increase privacy surrounding abortion.

According to the U.S. Department of Health and Human Services (HHS), through the Office for Civil Rights (OCR), the Notice of Proposed Rulemaking “proposes to extend additional privacy protections for providers, insurers, patients and others to safeguard [protected health information] PHI when that information otherwise would be disclosed or used to identify, investigate, sue, or prosecute someone for seeking, obtaining, providing, or facilitating lawful reproductive health care. Reproductive health care would be defined to include, but not be limited to, prenatal care, abortion, miscarriage management, infertility treatment, contraception use, and treatment for reproductive-related conditions such as ovarian cancer.”

The proposal would prevent abortionists, health insurance agencies, and other parties associated with abortion travel from sharing information with out-of-state law enforcement — even in criminal cases. It would also protect women who cross state lines for an abortion, though pro-life state laws do not currently allow for the prosecution of women who undergo abortions.

“The proposal would modify existing standards by prohibiting uses and disclosures of PHI for criminal, civil, or administrative investigations or proceedings against individuals, covered entities or their business associates … for seeking, obtaining, providing, or facilitating reproductive health care that is lawful under the circumstances in which it is provided,” the proposed rule said. It also prohibits “the identification of any person for the purpose of initiating such an investigation or proceeding.”

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This proposal is the next in a series of moves the Biden administration has made to increase access to abortion. Women are already facing immense pressure to abort, and a new documentary from Sidewalk Advocates for Life has exposed the increased pressure women who travel for abortions face. Once they get to the abortion facility, after the trip has been paid for potentially by their employer or by an abortion fund, they don’t feel they have the freedom to change their mind and refuse the abortion.

“Now, there’s a different level of desperation,” said Mark Cavaliere, executive director of the Southwest Coalition for Life in New Mexico. “The women that we’re seeing have invested so much. Often times they have gotten a plane ticket and they’ve flown across the state. They’ve gotten hotel rooms and rented rental cars, and by the time they show up at the abortion facility they say they’ve got to catch a plane back in a few hours.”

Lauren Muzyka, president and CEO of Sidewalk Advocates for Life, explained, “By the time they’ve made the commitment to that drive, that fight … it is so much harder to get them to pause. It’s that psychology of influence, commitment, and consistency.”

The Biden administration, however, appears to be laser-focused on getting women abortions above all else.

“When the Supreme Court overturned Roe v. Wade, nearly half a century of precedent changed overnight,” said Secretary Xavier Becerra. “The Biden-Harris Administration is committed to protecting women’s lawful access to reproductive health care, including abortion care. President Biden signed not one but two executive orders calling on HHS to take action to meet this moment and we have wasted no time in doing so. Today’s action is yet another important step HHS is taking to protect patients accessing critical care.”

The proposed rule will be finalized following a 60-day public comment period.

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