New Biden rule protects privacy of women seeking abortions

Under the new rules, state officials and law enforcement cannot obtain medical records related to lawful reproductive health care with the goal of pursuing legal action. 

The Biden administration announced new regulations Monday to strengthen privacy protections for abortion patients and health care providers. 

The updated rules, supported by the Office for Civil Rights (OCR) at the US Department of Health and Human Services (HHS), promise to bolster patient-provider confidentiality regulations under the Health Insurance Portability Act of 1996 Privacy Rule (HIPAA). The modified code will provide an extra layer of protection against officials or anti-choice prosecutors who might request access to medical records while pursuing legal action against abortion providers and patients. 

“No one should have their medical records used against them, their doctor, or their loved one just because they sought or received lawful reproductive health care,” President Biden said in a statement. “By safeguarding patient information, the new rule will help health care providers give complete and accurate information to patients and improve the quality of health care.”

Patient privacy concerns after the fall of Roe

Most Americans are familiar with HIPAA, which protects personal medical information. Under existing rules, law enforcement agencies have the right to access some medical records, including those pertaining to reproductive health, during criminal investigations. 

In the wake of the US Supreme Court’s Dobbs decision that repealed Roe v. Wade, some abortion providers and patients have expressed confusion and fear about their own medical privacy and legal protections under HIPAA, said OCR Director Melanie Fontes Rainer. 

“Since the fall of Roe v. Wade, providers have shared concerns that when patients travel to their clinics for lawful care, their patients’ records will be sought, including when the patient goes home,” she explained in a statement. “Patients and providers are scared, and it impedes their ability to get and to provide accurate information and access safe and legal health care.”

In response to these fears, OCR first proposed changes to HIPAA in April 2023. After receiving nearly 30,000 comments from concerned providers, patients, and the general public, they finalized proposed updates.

Under the updated ruling, protected health information (PHI) pertaining to reproductive health care that was sought legally cannot be disclosed to “investigate or impose liability.” In other words, if a patient or provider partook in abortion care or other reproductive health treatments that were carried out legally at the time of service, their PHI cannot be shared with state officials or prosecutors.

For patients who live in states where abortion is outlawed, the new rules apply to care sought in states with legal abortion—that is, a patient’s out-of-state records can’t be used against them so long as the services they received were legal in the state where they took place. 

The new rules also require health care providers to obtain signed documents from law enforcement officials ensuring that any requested records related to reproductive health care will not be used to pursue legal action related to that care. Providers must update their privacy policies to reflect the new regulations. 

Protections for abortion patients ‘more important than ever’

Amid fetal personhood rulings with the potential for criminal prosecution, debates over IVF access, and other threatened legal action against abortion providers and patients, HHS Secretary Xavier Becerra said expanded privacy protections are crucial. 

Uncertainty about the future landscape of abortion has had a “chilling effect” on patients simply visiting their doctors, filling prescriptions, and seeking other reproductive health care, Becerra said. He hopes the privacy updates will ease anxiety for patients—especially those who must travel to find safe and legal abortion care. 

“The Biden-Harris Administration is providing stronger protections to people seeking lawful reproductive health care regardless of whether the care is in their home state or if they must cross state lines to get it,” he said. “With reproductive health under attack by some lawmakers, these protections are more important than ever.”