The 1996 federal law that protects the privacy of our medical records –the Health Insurance Portability and Accountability Act or HIPAA – has from the outset contained a carefully crafted exception for personal health information that might bear directly on the commission of a crime. But with the overturning of Roe v. Wade and the anticipated criminalization of abortion in about half the United States, this narrow legal conduit will balloon into a multilane channel expansive enough to accommodate a flotilla of aggressive state prosecutors.
Just days after the Supreme Court’s fateful decision in Dobbs, the Office of Civil Rights (OCR) of the U.S. Department of Health and Human Services – the agency that enforces HIPAA’s privacy rule – issued a Guidance intended to blunt the impact of the Court’s ruling. But this nonbinding Guidance will at most wrap a thin gauze over the outer edges of a gaping legal wound. In the real world of the daily practice of medicine, the undoing of Roe will signal not only the demise of a woman’s right to abortion, but also the cancellation of her broader right to reproductive privacy.
Anti-Abortion Legislatures Will Enact Strict Reporting Requirements
The OCR Guidance offers the example of a woman who seeks care in a hospital emergency department (ED) for complications of a miscarriage during the tenth week of pregnancy in a state that prohibits abortions after six weeks. If ED personnel suspect that the woman has taken abortifacient medication and thus broken the law, the hospital may report the event without her permission. Still, the Guidance admonishes, the hospital would be required to do so only if state law mandated such reporting. But anti-abortion state legislatures, intent on counteracting the surge in demand for abortion pills triggered by the shutdown of abortion clinics, will have every incentive to enact strict reporting requirements.
Healthcare Providers and Health Plans Will Have to Comply with Warrants and Subpoenas
The OCR Guidance offers another example of a court order requiring a reproductive health clinic to produce the records of a patient who has had an abortion. The Guidance recognizes that under the HIPAA privacy rule, healthcare providers and health plans are permitted to disclose protected health information to law enforcement officials in order to comply with a court-ordered warrant or subpoena. The Guidance notes, however, that the privacy rule addresses only the conditions under which providers and plans are permitted to comply with warrants and subpoenas, but it does not say whether they are required to comply.
Perhaps large medical centers and insurers will have the legal and financial resources to individually file motions to quash hundreds of subpoenas seeking medical records on women who were documented as pregnant but had no public record of a subsequent birth. But the overwhelming majority of healthcare practices, hospitals, rehab centers, clinics, laboratories, pharmacies, and medical suppliers will simply not be able to resist the efforts of a determined state prosecutor or, in the case of a state that adopts an anti-abortion bounty law, an aggressive private litigator.
It’s All About a Woman’s Reproductive Life, Not Just About Abortion
Lawyers have already begun to advise their clients on ways to shield some types of abortion-related information from prosecutors. With the issue of out-of-state travel to obtain an abortion in mind, one advisor suggested that plans providing travel benefits might think twice about asking beneficiaries to document where their expenses were incurred. But the issue of preserving the privacy of personal health decisions goes far beyond the narrow question of disclosing abortion-related information. It goes to the entire reproductive life of every woman from menarche to menopause.
As a practicing physician in a community health center, I know that a woman’s pregnancy status is tightly intertwined with every aspect of her medical care, and not just the narrow issue of carrying a fetus to term. As healthcare providers, we routinely check a pregnancy test before prescribing contraceptive pills, implants, or injections or inserting an IUD. We check pregnancy status before prescribing many other medications or ordering X-rays that might harm a growing fetus. I may withhold medical clearance to undergo elective surgery until I have confirmed that an HCG test for pregnancy is negative. All these pregnancy test results are part of the patient’s permanent medical record.
When a woman of reproductive age seeks attention because of severe lower abdominal pain, we check a pregnancy test to exclude the possibility that she has an ectopic pregnancy, which is ordinarily a surgical emergency. When she experiences vaginal bleeding unrelated to her menstrual period, we check a pregnancy test to rule out an ongoing miscarriage. In a patient with a molar pregnancy, where some cells of the placenta grow into what is essentially a tumor and where the fetus is doomed, we monitor the HCG test every two weeks to make sure that the products of conception have been completely removed. When a woman has undergone an embryo implant as part of assisted reproduction, specialists monitor the HCG to see if the implant has taken. A determined state prosecutor will be able to use court-issued subpoenas and warrants to obtain all these test results.
In a separately issued post-Dobbs Guidance, OCR warned women that information on their smart phones may no longer be shielded from prosecutorial inquiry. If you have a menstrual period-tracking app on your phone that was not provided by your health plan, your data is unlikely to be covered by HIPAA’s privacy protections.
The End of Reproductive Privacy
In his majority opinion in Dobbs, Justice Alito ruled that Roe’s reliance on a broad constitutional right to privacy was misplaced. Instead, the majority scrapped the right to privacy in favor of an alternative notion of ordered liberty that balances the competing interests of a pregnant woman and the potential life of the unborn. Legal scholars can debate whether a constitutional right to privacy is recoverable from the debris of the wreckage. And legislators in both houses of Congress can work on bipartisan legislation to partially shore up federal privacy laws. But in states where abortion is criminalized, women of reproductive age and their healthcare providers will now have to make real-time decisions under the watchful prosecutorial eye of a new post-Roe panopticon.
Jeffrey E. Harris is a primary care physician with Eisner Health in Los Angeles, Calif., and professor of economics emeritus at the Massachusetts Institute of Technology in Cambridge, Mass. The views expressed here are the author’s and do not necessarily reflect the positions of Eisner Health, the Massachusetts Institute of Technology, or any other organization with which he is affiliated.
Suggested citation: Jeffrey E. Harris, The Demise of Roe Threatens the Privacy of a Woman’s Entire Reproductive Health Record, JURIST – Professional Commentary, August 9, 2022, https://www.jurist.org/commentary/2022/08/Jeffrey-Harris-Dobbs-abortion-reproductive-rights/.
This article was prepared for publication by Rebekah Yeager-Malkin, Deputy Managing Commentary Editor. Please direct any questions or comments to [your pronouns] at commentary@jurist.org
