Montana’s attorney general and Republican officials from 18 other states are opposing a federal effort to strengthen medical privacy regulations, arguing that states with abortion bans should be able to obtain reproductive health care records for criminal investigations, including when a patient travels to another state.
Amid the fractured landscape of legal abortion access in the wake of the U.S. Supreme Court decision in 2022, the proposed federal rule change represents the Biden administration’s attempt to boost private health information protections for patients who legally obtain an abortion, including those who travel across state lines. If adopted, health care providers and insurers would be blocked from handing over patient medical records to law enforcement pursuing a “criminal, civil, or administrative investigation” connected to “lawful reproductive health care,” according to the April draft of the proposed rule.
But the cohort of Republican officials argued in a June letter that the Biden administration’s effort to reform HIPAA, the Health Insurance Portability and Accountability Act, would interfere with states’ ability to enforce their own laws.
“Rather than respect the decisions of some States to regulate abortion, the Biden Administration has instead sought to wrest control over abortion back from the people and their elected representatives,” the letter said.
Montana Attorney General Austin Knudsen joined his counterparts from Idaho, South Dakota, North Dakota, Mississippi, Indiana, Alabama, Kentucky, Alaska, Louisiana, Arkansas, Missouri, Tennessee, Georgia, Ohio, Texas, South Carolina, Nebraska and Utah in signing the letter.
Of those attorneys general, Knudsen is one of the two, including Alaska’s Treg Taylor, representing a state where abortion remains legal. His office is defending a stack of Republican-backed laws to curb and restrict abortion in Montana, all of which have been temporarily blocked while litigation continues. Pre-viability abortion in Montana has been protected since 1999 under the state constitution’s privacy provision.
Asked why Knudsen would seek broader access to reproductive medical records when abortion remains legal in Montana, press secretary Emilee Cantrell provided a general statement.
“The Attorney General regularly engages in the federal rulemaking process to uphold the interests of the State and prevent federal encroachment into issues that are reserved to the states,” Cantrell said. “As the letter states, the proposed rule conflicts with HIPAA’s plain text and exceeds the authority that Congress has granted to [the Department of Health and Human Services]. HIPAA does not authorize [the department] to make broad policy judgments overriding or interfering with states’ decisions.”
Knudsen’s office declined additional requests for an interview with the attorney general about the issue, citing his full schedule.
Roughly 25 million women of reproductive age live in states where abortion is banned, meaning they would have to travel beyond their state of residency to obtain a legal abortion. Abortion providers in Montana have said more patients are traveling to Montana for the service — the Susan Wicklund Fund, an abortion access group, said its financial aid applications from out-of-state patients doubled from 2021 to 2022, increasing to 77 people from 36.
Supporters of the Biden administration’s rule, including abortion rights groups and major medical associations, have endorsed the attempt to prevent patient health records from being used in criminal investigations into lawful health care. The attorneys general of 24 other states, among them Washington, Oregon, California, Colorado and New York, also supported the proposed privacy expansion, citing “a climate of uncertainty and fear in the provision of reproductive health care throughout the country.”
But Knudsen and other attorneys general maintain the rule will tie the hands of state law enforcement agencies during legitimate investigations.
“Suppose that state officials had reason to believe that an abortion provider deliberately performed an abortion in violation of state law, resulting in serious injury to the woman, and that the provider then falsified medical records and referred the woman to an out-of-state provider to cover it up,” the June letter said. “State officials would clearly have a basis to investigate that provider for ‘a potential violation of law.’ … But under the proposed rule, a regulated entity with relevant evidence could deny requests for that information based on its assumption that the ‘care’ was ‘lawful’ as reflected in the falsified records or as provided out of state.”
Dr. Eric Perakslis, chief science and digital officer at the Duke Clinical Research Institute, told Montana Free Press that the example involves “a lot of reaching,” and doesn’t account for other ways a state could penalize or prosecute medical providers for wrongdoing. At its core, Perakslis said, the changed rule is an attempt to protect patients and providers who are engaging with legal services and avoid alienating patients from quality care because of a fear of prosecution.
“There’s a growing set of reasons for people not to be forthcoming with their doctors,” Perakslis said. “I’m probably not going to successfully and most optimally treat a patient who has withheld information or lied to me. I could actually do something that’s very dangerous to that patient.”
Perakslis has said the Biden administration’s rule could go further to increase protections for patients and providers, particularly those seeking and offering legal services in states with severe restrictions.
The federal health department finished accepting public comment on the rule in June and is expected to publish the final decision later this year. Republican attorneys general who sent the opposition letter have not said whether they intend to file a lawsuit if it is adopted.
If such a lawsuit does materialize, Knudsen’s spokesperson did not say whether the Montana attorney general intends to join the litigation.
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