Two Democratic U.S. Senators – Michael Bennett (D-CO) and Mazie Hirono (D-HI) – have introduced a bill that seeks to strengthen the privacy protections of the Health Insurance Portability and Accountability Act (HIPAA) for individuals seeking access to abortion care. The bill – The Secure Access for Essential Reproductive (SAFER) Health Act – was prompted by the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which removed the federal right to abortions and gave individual states the full power to regulate any aspect of abortion care not protected under federal law.
The senators are concerned that while patient privacy is protected under HIPAA, HIPAA permits healthcare providers to disclose patient information for legal investigations without patient consent, which means the sensitive health information of individuals seeking access to abortion care could be disclosed to law enforcement to allow those individuals to be prosecuted for attempting to terminate pregnancies.
In June 2022, in response to the Supreme Court decision, the Department of Health and Human Services issued guidance to HIPAA-covered entities and their business associates confirming that while the HIPAA Privacy Rule permits disclosures of protected health information, as required by law, without individual authorizations, the HIPAA Privacy Rule does not require such disclosures. The HHS also confirmed that disclosures of reproductive health information are also only permitted in very limited circumstances, and encouraged anyone who believes their privacy has been violated to file a complaint with OCR.
The SAFER Health Act seeks to improve protections further and prohibit healthcare professionals from sharing personal health information related to the termination or loss of pregnancy with the courts without a valid authorization from the patient and, if passed, would apply to federal, state, local, and tribal proceedings, including civil, criminal, administrative, and legislative proceedings. The Act calls for the HHS to revise HIPAA and health information technology regulations accordingly to allow the enforcement of this new requirement, and to conduct a national campaign to educate HIPAA-covered entities and their business associates about the revisions.
“No one should have to worry about being investigated or prosecuted for receiving or providing reproductive health care,” said Bennet. “This legislation will protect the privacy of patients who have had abortions, regardless of where they live or receive care.” Bennett, along with other Democratic senators, introduced the Freedom to Travel for Health Care Act in July 2022, to clarify that it is illegal for states that have implemented bans or restrictions on abortions to prohibit state residents from traveling across state lines to receive abortion care. Bennet was also one of several Democratic Senators to introduce the Let Doctors Provide Reproductive Health Care Act, which sought to protect doctors that provided legal abortions to out-of-state patients; however, both Acts failed to make it past the Senate.
“MAGA Republicans in states with abortion bans have made it very clear they want to prosecute women for seeking reproductive health care. One way they plan to do that is by weaponizing patients’ reproductive health information,” said Senator Hirono. “That is why I am proud to introduce the SAFER Health Act—legislation that would strengthen and expand HIPAA to protect women and ensure doctors cannot share personal reproductive health information to a court proceeding without patient consent.
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