WASHINGTON — The Biden administration continues to get creative in its attempts to expand abortion access in a post-Roe America, where 14 states have banned most abortions and Congress is divided on the issue. 

One of the latest tools in the Biden administration’s “whole-of-government” approach to respond to state pro-life protections involves proposed changes by the Department of Health and Human Services (HHS) to the Health Insurance Portability and Accountability Act (HIPAA), the rules which protect patient’s private healthcare information, and a change which would prevent states from accessing information about abortion. 

Roger Severino, who was head of the HHS’ Office for Civil Rights (OCR) under former President Donald Trump and is now vice president of domestic policy at the Heritage Foundation, told the Register that the proposed HIPAA rule change is “part of a continuing campaign of massive resistance to the Dobbs decision by the Biden administration” aimed at “upending our federal system by trying to impede law enforcement in pro-life states.” 

Under the proposed rule change, information on “reproductive health” would not be turned over to authorities except in certain circumstances. Critics say the changes would prevent states from enforcing pro-life protections, would be a barrier to tracking complications from abortions, and could even enable abuse and sex trafficking.

HHS issued the proposed rule in April barring healthcare providers and insurers from turning over protected health information (PHI) for “the purpose of conducting a criminal, civil, or administrative investigation into or proceeding against the individual, a health care provider, or other person in connection with seeking, obtaining, providing, or facilitating reproductive health care.” 

It would apply in three circumstances. The first would be reproductive health care that takes place “outside of the state where the investigation or proceeding is authorized” and is “lawful in the state in which it is provided.” The second would be if the reproductive health care “is protected, required, or authorized by Federal law, regardless of the state” in which it is provided. The third scenario would be if it is provided “in the state in which the investigation or proceeding is authorized” and “permitted by the law of that state.”

Citing his past role in OCR’s function of regulating HIPAA, Severino noted that the legislation’s text “allows cooperation with law enforcement,” especially “if there is an imminent threat to the health and safety of a person. If somebody says ‘I'm going to kill myself’ or is going to kill somebody else, a medical provider can report that to law enforcement without violating HIPAA.” 

He said the Biden administration’s changes would “create a carve-out” by “saying that unborn persons literally do not count as human persons for HIPAA purposes,” and by barring cooperation “with law enforcement from out of state if you happen to be in a pro-abortion state.” 

 

Redefining Person

The rule would redefine the term “person” in HIPAA, currently defined as a “natural person, trust or estate, partnership, corporation, professional association or corporation, or other entity, public or private,” to mean “a human being who is born alive.” It specifies that this definition “does not include a fertilized egg, embryo, or fetus.” 

Severino took issue with this redefinition, saying it “has all sorts of spillover effects because the word ‘person’ appears all over the HIPAA Regulation.”

He referenced a 2019 incident during his time at HHS when the department enforced HIPAA against a Florida medical center which failed to provide a mother timely access to prenatal health records for her unborn child. “We held a provider responsible and they had to pay tens of thousands in view of penalties for not providing the records because those were the records of the unborn child,” he said. “That would not have occurred after this rule. There’d be no claim for the child's medical records because a child’s not considered a patient which is an absurdity under this rule.”

 

Abortion Pill Concerns

Another area of concern is the rule change’s facilitation of the distribution of chemical abortion drugs in states where they are banned.

Severino said that because of the change, in a situation in which a medical provider “learns of the fact that there is trafficking in illegal abortion drugs going on across state lines, the medical providers in pro-abortion states would be barred from cooperating with law enforcement in pro-life states as part of any investigation that deals with the interstate trafficking of abortion drugs.”

Julie Marie Blake, senior counsel for regulatory litigation at Alliance Defending Freedom, told the Register that the rule change is an attempt to “stop states enforcing laws against abortionists and others who peddle dangerous chemical abortion drugs by making it impossible to get any of the evidence needed to enforce these laws.”

The Biden administration is facing a lawsuit from the pro-life Alliance for Hippocratic Medicine, represented by ADF, over the approval process for the abortion pill mifepristone and more recently in December 2021, allowing it to be dispensed without the in-person visit which the FDA had previously required since its approval in 2000. 

In April, a group of Republican state attorneys general warned pharmacies that the Comstock Act of 1873 makes it illegal to mail “[e]very article, instrument, drug, medicine, or thing … for producing abortion …” The warning was issued despite the Department of Justice’s determination in December 2022 that mailing abortion pills does not violate the Comstock Act “where the sender lacks the intent that the recipient of the drugs will use them unlawfully.”

Dr. Timothy Millea, healthcare policy chair at the Catholic Medical Association, told the Register that under the new rule there would also be difficulties with tracking information about dangerous complications from chemical abortions. He highlighted a study from the pro-life Charlotte Lozier Institute, which found that 60% of emergency room visits after taking the chemical abortion pill were miscoded as miscarriage treatment. 

He said the rule would further complicate what little tracking there is of such complications. “If chemical abortions became the one of the top ten causes of death in women under 40 years of age,” he said, “we couldn’t find that out. There would be no way to collect that data because it’s prohibited from being released.”

 

Legally Embattled Executive Actions

Two of the instances cited by the proposed rule where federal law would preempt state law in barring the disclosure of abortion information involve recent executive actions by the Biden administration that are facing legal scrutiny. 

One is the Biden administration’s move to facilitate abortions in certain cases through the Department of Veterans Affairs at the agency’s medical centers. VA nurse Stephanie Carter recently prevailed in obtaining religious exemptions for VA employees in the policy. GOP Senators failed in April to overturn the law under the Congressional Review Act. Led by Sen. Tommy Tuberville of Alabama, they said the rule conflicted with the Veterans Health Care Act of 1992 which states that the VA “may provide” for pap smears, mammograms and menopause management care for women, “but not including under this section infertility services, abortions, or pregnancy care (including prenatal and delivery care) except for such care relating to a pregnancy that is complicated or in which the risks of complication are increased by a service-connected condition.”

The other involves the HHS’s July 2022 guidance that under the Emergency Medical Treatment and Active Labor Act (EMTALA), if a physician believes that a pregnant patient “is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician must provide that treatment.” The guidance specifies that “when a state law prohibits abortion and does not include an exception for the life and health of the pregnant person — or draws the exception more narrowly than EMTALA’s emergency medical condition definition — that state law is preempted.”

U.S. District Judge James Wesley Hendrix in Texas issued a preliminary injunction against that guidance in August 2022, writing that “the guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict.” However, the same month another federal judge blocked an Idaho law barring most abortions after a lawsuit from the Department of Justice, arguing that it ran afoul of EMTALA.

With respect to the two issues now under litigation, the proposed HHS rule would prohibit the use or disclosure of information in an investigation “against a covered entity that provided reproductive health care in a situation where EMTALA requires offering such health care,” and prohibit using or disclosing information “in an investigation into or proceeding against employees of the Department of Veterans Affairs (VA) who provide or facilitate reproductive health care in a manner authorized by Federal law, including VA regulations.”

Severino said there was “absurdity” in the rule citing EMTALA since the text of that 1986 law “recognizes unborn persons as patients, requiring stabilization under law.” EMTALA uses the term “unborn child” four times in relation to a discussion of protecting the unborn child’s health and safety.

 

Cases of Abuse and Coercion

In another point of contention, the proposed rule states that “child abuse” is “best interpreted to exclude conduct based solely on seeking, obtaining, providing, or facilitating reproductive health care.”

Millea wondered what would happen under the rule if a young woman who is the victim of sexual abuse comes into an abortion facility and “is being forced to have an abortion.” Because since it relates to “reproductive health,” the possible evidence of abuse could be missed, the Catholic doctor warned.

The rule was open for comments through mid-June and members of the Catholic Medical Association, National Catholic Bioethics Center, and National Association of Catholic Nurses questioned this in their comments on the rule, arguing that it “creates a problem when the significant evidentiary basis for suspicions of child abuse is that a minor is seeking Reproductive Health Care.”

Given that the proposed rule states that “providing or facilitating reproductive health care cannot be considered evidence of abuse,” they asked, “if a medical professional cannot make such an inference merely from the fact that a young child is coming in to get an abortion, or to get contraception, etc., then on what basis can they make such an inference?”

“In comparison, when a child presents with a broken nose and a black eye, one would be negligent for not suspecting child abuse, since such injuries are suspicious for children,” they wrote. “Why can you not presume that the need for abortion, contraception, etc., is suspicious in a particular circumstance?”

 

Confusion and Conflicts of Interest 

Despite the rule’s contention that it is only barring the release of information in cases where the abortion is “lawful,” the Catholic health care professionals raised concerns about disputes “over whether any particular abortion is lawful or not,” noting that “the lawfulness or unlawfulness of an abortion will often depend on the age of the aborted child and/or the reason for the abortion.” 

In light of this, they wrote that it is “unreasonable to expect that stakeholders, both officials and providers, will necessarily know with certainty when an abortion is lawful and when it is not. Information may be sought in criminal, civil, and administrative proceedings for the very purpose of making that determination.”

Alliance Defending Freedom attorneys wrote in their comments on the rule that there could be significant conflicts of interest since “under the terms of the proposed rule, a state law enforcement authority investigating abortion-related criminal activity must depend on the determination of an abortion provider — which may be the very target of the investigation — that the state’s investigation complies with the proposed rule.”

A group of 19 state attorneys general, led by Mississippi Attorney General Lynn Fitch, also called attention to this in their comments on the rule. 

“Regulated entities have neither the authority nor the competence to enforce state and local laws or to determine whether a violation of such laws has occurred,” they wrote. “State law-enforcement personnel and government officials possess that authority, and by obstructing their ability to exercise it the proposed rule violates HIPAA and runs afoul of the constitutional design.”