JOHN YANG: Late last month, the Biden administration issued new rules designed to keep prosecutors from getting the medical records of patients seeking legal abortions.
The expansion of the 30 year old health privacy law, known as HIPAA, prohibits the disclosure of health information to state officials who are conducting a criminal investigation.
The idea is to prevent it from being used to prosecute an instance where a pregnant person goes out of state for a legal abortion.
The rules are to take effect in late June.
Carmel Shachar heads the Health Law and Policy Clinic at Harvard University.
Carmel, I think there are a lot of people have misperceptions about HIPAA.
They think that their medical information goes locked into a vault almost behind an impenetrable wall.
So why are these new rules needed?
CARMEL SHACHAR, Faculty Director, Health Law and Policy Clinic: So I wish that HIPAA was that kind of lockbox.
The truth is that HIPAA is a little bit more like a pasta strainer, so it keeps some information protected.
But there's a lot of exceptions.
And one of the exceptions that has been there from the start is if law enforcement goes to your medical provider and says, hey, we need these patients medical records for an investigation.
And ever since Dobbs undid the constitutional protections for abortion, people are afraid that police law enforcement in states that have banned abortion will use that exception to get patients medical records.
JOHN YANG: Do cities and states collect information about people who have abortion procedures that is not protected?
CARMEL SHACHAR: Yes, a lot of states have had abortion and abortion complication reporting requirements for many years.
Those reports nominally don't include people's names.
It's supposed to be okay, who's providing abortions?
What are the outcomes of the abortions?
But then there are also concerns over prosecution of people who are seeking abortions.
JOHN YANG: And would this also cover someone who was going online, say, to seek to try abortion medication from a pharmacy or a provider in another state?
CARMEL SHACHAR: Yeah, so that is a big concern.
I mean Dobbs undid Roe, but we're not back in 1973, before there was a constitutional right to abortion.
So a lot of people are getting abortion care and abortion information over the Internet, where a patient might be sitting in Alabama, but the physician is sitting in Massachusetts, the state that allows abortions.
JOHN YANG: Are there other loopholes or ways that these rules fall short in your view, do you wish they had gone farther?
CARMEL SHACHAR: I do wish that they had gone farther, although I understand the Biden administration's concern with how much can we put out there before we're going to open ourselves to legal challenges?
So one of the issues is telehealth abortions, as you raised, are those lawful under this rule and protected, or are those unlawful because the patient is in a state that has banned abortion?
The other concerns are this rule is really focused on reproductive health information, but there's a lot of other kind of health information that is increasingly becoming criminalized, such as gender affirming care.
This rule doesn't protect that kind of information.
It doesn't protect HIV status as well.
I think there's also going to be some challenges because right now you have a rule that says, okay, records about abortion need to be protected in physicians hospitals.
If somebody asks you for those records, you have to say no.
Otherwise, you're going to get some serious penalties under HIPAA, which is a big deal for hospitals.
But state law is going to say, hey, aiding and abetting an abortion.
And that could mean just talking about, okay, patient, are you going out of state for a lawful abortion is a crime.
We need to get information from you in order to prosecute crimes that are properly put on the books in terms of being enacted.
And so I think it's going to create a real conflict between federal and state law, and I think physicians and patients are going to be in the middle of it.
JOHN YANG: You know, continuing on thought, former President Trump spelled out his stand on abortion in an interview published in Time magazine this past week.
He said, I'm leaving everything up to the states.
He was asked specifically about tracking pregnancies.
He said, they might do that.
Again, you'll have to speak to the individual states.
Now, this is an administrative rule.
Could a new administration come in and wipe it out?
CARMEL SHACHAR: So I think this rule is somewhat fragile.
The good news is it was passed early enough that Congress can't simply repeal it under the Congressional Review Act when there's a change of administration, if there will be a change in administration.
But as we've seen in other rules in the healthcare space, most notably around anti-discrimination protections, we saw that the Obama administration put out one rule, the Trump administration put out another rule, walking it back.
And then the Biden administration put out a rule restoring the Obama administration's protection.
So you could see a lot of flip flopping.
I think that is going to be really concerning for patients.
We know that in the first half of 2023, about 92,000 people traveled from an abortion restrictive state to a state with legalized abortion in order to receive that care.
And we've heard officials like the Mississippi attorney general say that the state maybe has an interest in preventing these people, mostly women, from traveling across state borders.
That feels alarming that people's ability to travel would be restricted depending on their pregnancy status.
JOHN YANG: Carmel Shachar from Harvard University, thank you very much.
CARMEL SHACHAR: Thank you.
