07.18.23

Cantwell, Colleagues Urge HHS to Protect Health Information from Being Used to Prosecute Abortion Patients and Providers

Lawmakers ask HHS to require a warrant for law enforcement access to all medical records & mandate patient notification of record disclosure; Since Dobbs, WA State Planned Parenthood clinics saw a 56% increase in abortion patients from Idaho -- among the 19 states with GOP attorneys general opposing an HHS proposal that would better protect health data

WASHINGTON, D.C. – Today, U.S. Senator Maria Cantwell (D-WA) joined 46 colleagues in sending a letter to U.S. Department of Health and Human Services (HHS) Secretary Xavier Becerra urging the agency to adopt stronger privacy regulations for Americans’ protected health information (PHI), including a warrant requirement for the release of medical records in the revised Health Insurance Portability and Accountability Act (HIPAA) privacy rule regulation.

The revised rule, expected to be released later this year, would expand HIPPA protections for abortion patients and providers who seek or administer care for those traveling from anti-choice states.

“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. “Although doctors cannot be forced to testify about their patients’ medical conditions in courts across the country, patient records containing the same information can be subpoenaed by law enforcement agencies, without showing probable cause of a crime and without oversight by an independent judge. The ability of law enforcement agencies to subpoena these records undermines patients’ legal protections, particularly in an era of digital health records, where every patient interaction is carefully documented. HHS should ensure that Americans’ PHI receive the greatest degree of protection under federal law.”

The full letter sent to HHS Secretary Becerra is available HERE.

Today’s action follows another letter in September 2022, when Sen. Cantwell joined U.S. Senator Patty Murray (D-WA) and 28 other colleagues in sending a letter to HHS calling on the Biden Administration to strengthen federal privacy protections under HIPAA and broadly restrict providers from sharing patients’ reproductive health information without their explicit consent—particularly with law enforcement or in legal proceedings over accessing abortion care.

Recently, 19 Republican attorneys general, including Idaho’s Raúl Labrador, sent a public comment to Secretary Becerra strongly opposing HHS’s revised HIPPA protections. If successful, their opposition would make it easier for courts in Idaho to investigate abortions performed in Washington state and prosecute patients and providers.

This public comment poses data privacy concerns for Washington state providers and residents. Since the one-year anniversary of the Dobbs decision, Planned Parenthood clinics in Washington state have seen a 56% increase in abortion patients traveling from Idaho, and a 36% increase in all out-of-state patients, per Sen. Cantwell’s one-year snapshot report, available HERE.

In April, Idaho passed a first-of-its-kind ‘abortion trafficking’ law that makes helping a minor obtain abortion pills – or providing housing or transportation for a minor seeking abortion care – a criminal offense punishable by two to five years in prison. Without a warrant requirement for the release of medical records in the revised HHS HIPPA rule, attorney generals in anti-choice states could obtain patient information for the purpose of prosecuting anyone who seeks or provides abortion care in a pro-choice state.

Since last year’s leaked draft opinion indicated the Supreme Court’s intent to overturn the reproductive care precedent established under Roe v. Wade, Sen. Cantwell has been focused on protecting abortion access and choice for women across the country. In March 2023, Sen. Cantwell joined Sen. Murray in reintroducing the Women’s Health Protection Act and hosting a roundtable discussion on the path forward to defend Americans’ reproductive rights.  

In April 2023, Sen. Cantwell joined hundreds of her Democratic colleagues in filing amicus briefs before the U.S. Supreme Court and Fifth Circuit Court of Appeals supporting the Biden Administration’s appeals of Texas federal district court and Fifth Circuit rulings which would restrict the availability of mifepristone. The Supreme Court agreed to a stay, permitting the safe and legal drug to remain available for the time being, but the litigation is still pending in the lower courts.  

Also in April, Sen. Cantwell joined U.S. Senator Patty Murray (D-WA) and 25 other colleagues in reintroducing the Let Doctors Provide Reproductive Health Care Act, which would ban anti-choice states from restricting or preventing health care providers from performing legal abortions. 

In May, Sen. Cantwell joined 12 Senate colleagues in reintroducing the My Body, My Data Act to protect personal reproductive health data.  

Also in May, Sen. Cantwell joined 29 Senate colleagues to introduce the Protecting Service Members and Military Families’ Access to Health Care Act, legislation that would codify the Department of Defense’s policy to help service members and their families access non-covered reproductive health care – including abortion services – regardless of the state in which they are stationed.  

In June, Sen. Cantwell joined colleagues in reintroducing the Right to Contraception Act to codify the right to contraception access established by the Supreme Court ruling Griswold v. Connecticut in 1965. Also last month, Sen. Cantwell cosponsored the Freedom to Travel for Health Care Act to ban anti-choice states from penalizing or prosecuting health care providers that offer reproductive services in states where abortion care is legal.