Democrats urge White House to do more to protect patients from red state abortion probes

Nearly 50 House and Senate Democrats want the Biden administration to do more to protect abortion rights by enacting stronger shielding to prevent people’s private medical records from being used by law enforcement agencies.

In a letter sent Tuesday to the Department of Health and Human Services, the Democrats called on the White House to strengthen a proposed rule regarding protected personal health data. 

The letter was led in the Senate by Sens. Ron Wyden (D-Ore.) and Patty Murray (D-Wash) and in the House by Rep. Sara Jacobs (D-Calif.)

The proposal in question would strengthen the Health Insurance Portability and Accountability Act (HIPAA) to prevent information about whether an individual sought, obtained, provided, or facilitated an abortion from being used by law enforcement in red states where abortion is banned.

Following the Supreme Court’s Dobbs decision, the administration said it was more likely that individuals’ protected health information (PHI) could be disclosed as part of a red state’s investigation and/or prosecution of a health provider or even an individual patient.

The proposed rule, issued in April, was meant to counter those concerns by barring state officials from forcing providers and insurers to turn over information about whether someone sought or provided an abortion. 

A public comment period on the proposal closed last month. 

“The threat that PHI will be obtained and used in such an investigation or proceeding is likely to chill individuals’ willingness to seek lawful treatment or to provide full information to their health care providers when obtaining that treatment,” the administration said in the proposal. 

Yet the rule as proposed would require officials to obtain an “attestation” that the health information won’t be shared for a prohibited purpose. It also would not protect that information from a subpoena, discovery request, or other administrative request. 

Among their demands, the lawmakers said the rule needs a much higher bar to overcome. Law enforcement agencies should be required to obtain a warrant before forcing doctors, pharmacists, and other health care providers to turn over their patients’ health information, they said.

The Democrats also said warrants must prohibit sharing those records with other law enforcement agencies, except to further the particular investigation identified in the relevant warrant application.

“Americans should be able to trust that the information they share in confidence with their doctors when seeking care will receive the highest protections under the law, regardless of the specific medical issue. But current legal protections for PHI are woefully insufficient,” the lawmakers wrote. 

They also said HHS should apply the warrant protection broadly.

“Instead of limiting this higher standard to narrow categories of records, HHS should apply this protection across the board, regardless of the illness, disease, or medical issue,” the Democrats said.