The HHS’ Office for Civil Rights has published a Notice of Proposed Rulemaking (NPRM) about an update to the HIPAA Privacy Rule to strengthen privacy protections for reproductive health information. The proposed update is in response to the Supreme Court decision in Dobbs v. Jackson Women’s Health Organization and the overturning of Roe v. Wade, which removed the federal right to abortion that has been in place for almost half a century.

Since that decision in 2022, states have been scrambling to enact abortion laws. 18 states have introduced full or partial bans on abortions in their states, and a further 4 states are due to introduce full or partial bans. There is concern that those states will attempt to prosecute state residents that seek abortions out of state and will request the health data of individuals from healthcare providers who provide reproductive health services or facilitate reproductive health care.

“When the Supreme Court overturned Roe v. Wade, nearly half a century of precedent changed overnight,” said Secretary Xavier Becerra in an announcement about the NPRM. “The Biden-Harris Administration is committed to protecting women’s lawful access to reproductive health care, including abortion care. President Biden signed not one but two executive orders calling on HHS to take action to meet this moment and we have wasted no time in doing so. Today’s action is yet another important step HHS is taking to protect patients accessing critical care.”

Currently, the HIPAA Privacy Rule permits but does not require HIPAA-covered entities to provide reproductive health information to law enforcement. OCR has released guidance on disclosures of reproductive health information and has clarified the circumstances when reproductive health information can be legally disclosed. OCR has also stated that noncompliance with the HIPAA Rules with respect to reproductive health care is an enforcement priority for OCR.

Today’s announcement is intended to enhance privacy protections and strengthen patient-provider confidentiality by prohibiting disclosures of reproductive health information to investigate or prosecute patients, providers, and others involved in the provision of legal reproductive health care, including abortion care.

Specifically, the proposed HIPAA Privacy Rule update will prohibit disclosures of reproductive health care information for:

• Criminal, civil, or administrative investigations into or proceeding against any person in connection with seeking, obtaining, providing, or facilitating reproductive health care, where such health care is lawful under the circumstances in which it is provided.
• The identification of any person for the purpose of initiating such investigations or proceedings.

These restrictions will apply in the following situations:

• Reproductive health care is sought, obtained, provided, or facilitated in a state where the health care is lawful and outside of the state where the investigation or proceeding is authorized.
• Reproductive health care that is protected, required, or expressly authorized by federal law, regardless of the state in which such health care is provided.
• Reproductive health care that is provided in the state where the investigation or proceeding is authorized and is permitted by the law of the state in which such health care is provided.

Reproductive health care is defined as including, but not limited to, prenatal care, abortion, miscarriage management, infertility treatment, contraception use, and treatment for reproductive-related conditions such as ovarian cancer.

Under the proposed rule, if a request is received for protected health information that is potentially related to reproductive health care, a regulated entity will be required to obtain a signed attestation that the use or disclosure is not for a prohibited purpose. The attestations will be required for health oversight activities, judicial and administrative proceedings, law enforcement purposes, and disclosures to coroners and medical examiners.

“I have met with doctors across the country who have shared their stories,” said OCR Director Melanie Fontes Rainer. “These providers have expressed fear, anger, and sadness that they or their patients may end up in jail for providing or obtaining evidence-based and medically appropriate care. Trust is critical in the patient-doctor relationship and medical mistrust can damage and chill patients’ relationship with their providers, imperiling patient health, “added Fontes Rainer. “Today’s proposed rule is about safeguarding this trust in the patient-provider relationship, and ensuring that when you go to the doctor, your private medical records will not be disclosed and used against you for seeking lawful care.”

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