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Jennifer Klein, the director of the White House Gender Policy Council, told reporters this week, “No one should have their medical records used against them, their doctor or their loved one just because they sought or received lawful reproductive health care.” With this in mind, as the Associated Press reported, the Biden administration has finalized an important new policy.
The medical records of women will be shielded from criminal investigations if they cross state lines to seek an abortion where it is legal, under a new rule that the Biden administration finalized Monday. The regulation, which is intended to protect women who live in states where abortion is illegal from prosecution, is almost certain to face legal challenges from anti-abortion advocates and criticism from abortion-rights advocates that it does not go far enough.
For those who might benefit from a refresher, let’s revisit our earlier coverage and review how we arrived at this point.
After Republican-appointed Supreme Court justices overturned Roe v. Wade, GOP officials at the state level did exactly what everyone expected them to do: They imposed sweeping restrictions on reproductive rights.
But there’s always been an important catch to these state-based Republican efforts: People are free to travel, receive medical care from professionals in different states, and then return home. It’s not an option for everyone — many red-state residents can’t afford such a trip, can’t get time off of work, can’t arrange child care, etc. — but for some, these open doors are critically important.
The challenge for GOP officials, then, is figuring out how to close them.
As a practical matter, it’s incredibly difficult for Republicans to act locally, creating checkpoints, monitoring who’s traveling in and out of their states, and asking people to explain their comings and goings.
It’s vastly easier to obtain — or at least try to obtain — out-of-state medical records. In fact, last summer, 19 Republican state attorneys general signed on to a joint letter to the U.S. Department of Health and Human Services, making the case for being able to access these documents.
The Biden administration was apparently unpersuaded and moved forward with plans to protect those who leave their home states for abortion care. The AP’s report added:
The new regulation is an update to the Health Insurance Portability and Accountability Act of 1996, which prohibits medical providers and health insurers from divulging medical information about patients. Typically, however, law enforcement can access those records for investigations. In states with strict abortion rules, the federal regulation would essentially prohibit state or local officials from gathering medical records related to reproductive health care for a civil, criminal or administrative investigation from providers or health insurers in a state where abortion remains legal.
“Under federal law, you have rights to your privacy,” HHS Secretary Xavier Becerra said at a press conference announcing the policy. “That’s what today is about. Making sure that Americans who convey very personal private health information have rights.” He added that women who also seek fertility, contraception, or miscarriage care will also be protected.
A Wall Street Journal report added that litigation over the Biden administration’s new rule is all but certain. Watch this space.
This post updates our related earlier coverage.