Women's medical records will be protected from criminal investigations if they cross their state borders to access abortions other than where legal, under a new rule that Joe Biden's administration finalized on Monday.
The rule, which seeks to protect women who live in states where abortion is illegal from persecution, will most likely face legal challenges from anti-abortion activists, as well as criticism from defenders, who believe that it is not enough.
“No one should have their medical history used against them, their doctor, or their loved ones, simply because they requested or received legal reproductive health care,” Jennifer Klein, M.D., said Monday. director of the White House Gender Policy Council.
The new regulations are an update to the Health Insurance Mobility and Accountability Act of 1996, which prohibits health care providers and insurers from disclosing clinical information about patients.
However, law enforcement can usually access them for investigations.
In states with strict abortion regulations, federal regulation would essentially prohibit state or local officials from collecting medical records related to reproductive health care for a civil, criminal, or administrative investigation of providers or insurers in a state where abortion remains legal.
In theory, it would provide greater coverage to women who leave states with strict bans to seek an abortion from a medical provider in a state that allows it.
“As someone who cares for patients who travel from all over the country to our Washington health center, it is a reality. I've had patients ask me, 'Will there be consequences for me when I go home?'” said Dr. Serina Floyd, an obstetrician-gynecologist who performs abortions in Washington.
Women who also seek care for fertility, contraception, or miscarriages They will also be protectedadded on Monday the country's top health official, Secretary Xavier Becerra.
A group of 19 Republican attorneys general, all from states with strict abortion laws, urged the Department of Health and Human Services (HHS) to scrap the rule when a draft was released last year. The regulation “would unlawfully interfere with states' authority to enforce their laws, and does not address any legitimate need,” they wrote in a letter to the agency last year.
“Based as it does on a false vision of state regulation of abortion, the proposed rule is a solution that will cause a problem,” the letter said.
(The closest Mexican state to Arizona bans most abortions, creating a regional vacuum)
But the new regulations fall short of protecting women from criminal investigations when they order abortion pills online, as is becoming increasingly common. For example, I would not safeguard the medical records of a patient who requests an abortion pill while in her home in a state like Mississippi, where abortion is almost completely prohibited, from a provider in Illinois, where it is legal.
The rule also does not require law enforcement officials to obtain a court order to obtain patients' medical records, a change in the rule that some Democrats had requested from the Administration. Instead, authorities may request a subpoena, court order, or administrative request to obtain medical records.
Becerra acknowledged to journalists that the regulations have limitations and can be legally challenged.
“Until we have a national law that reinstates Roe v. “Wade, we are going to have problems,” the secretary explained. “But that doesn't stop us from doing everything we can to protect the right of all Americans to access the care they need.”
At least 22 Democratic-governed states have laws or executive orders seeking to protect medical providers or patients involved in abortions from law enforcement investigations in states with bans. In some of them, health professionals prescribe abortion pills via telehealth to women in other states where abortion is prohibited.
It is not clear that public officials have requested those medical records of patients who agreed to abortions. But last year, Texas officials demanded records from at least two out-of-state health centers that provide gender-affirming care. Texas, like most other Republican-governed states, prohibits gender-affirming care for minors.
