WASHINGTON – 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.
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“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,” Jennifer Klein, the director of the White House Gender Policy Council, told reporters on Monday.
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.
In theory, it would provide the most cover to women who leave states with strict bans to seek an abortion from a medical provider in a state that allows it.
“As someone who does see patients who travel from all across the country at our health center in D.C., it's a reality. I've had patients ask ... are there going to be consequences for me when I go home?" said Dr. Serina Floyd, an OB-GYN who provides abortions in Washington.
Women who also seek fertility, contraception or miscarriage care will also be protected, the nation’s top health official Xavier Becerra said Monday.
A group of 19 Republican Attorneys General, all from states with strict abortion laws, urged the Health and Human Services agency to ditch the rule when a draft was released last year. The regulation “would unlawfully interfere with states" authority to enforce their laws, and does not serve any legitimate need,” they wrote in a letter to HHS last year.
“Relying as it does on a false view of state regulation of abortion, the proposed rule is a solution in search of a problem," the letter said.
But the new regulation does not go as far as protecting women from criminal investigations when they order abortion pills online, as has become increasingly common. For example, it would not safeguard medical records of a patient who orders an abortion pill while at her home in a state like Mississippi, where abortion is mostly banned, from a provider in Illinois, where abortion is legal.
The rule also does not require law enforcement officials to obtain a warrant for any medical records of patients, a rule change some Democrats had sought from the administration. Instead, law enforcement can seek a subpoena, court order or an administrative request to obtain medical records.
Becerra acknowledged to reporters that the regulation has limitations — and may be challenged legally.
“Until we have a national law that reinstitutes Roe v. Wade, we're going to have issues,” Becerra said. “But that doesn't stop us from doing everything we can to protect every Americans' right to access the care they need.”
At least 22 Democratic-controlled states have laws or executive orders that seek to protect medical providers or patients who participate in abortion from investigations by law enforcement in states with bans. Medical providers in some of those states are prescribing abortion pills via telehealth to women in states with abortion bans.
It’s not clear that public officials have sought those medical records of patients around abortion. But last year, Texas officials demanded records from at least two out-of-state health centers that provide gender-affirming care. Texas, like most other Republican-controlled states, has a ban on gender-affirming care for minors.
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Geoff Mulvihill in Cherry Hill, New Jersey, contributed.