MD AG writes letter urging Biden Admin to bar health insurance data from being used in criminal, civil lawsuits

16 June 2023- Today, Maryland Attorney General Anthony G. Brown joined a coalition of 24 Attorneys General in a comment letter to the U.S. Department of Health and Human Services supporting stronger protections for patients’ reproductive health information. The Biden administration is considering adding amendments to the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, the federal law that governs the disclosure of protected health information (PHI). If implemented, the changes would make it illegal to share a patient’s PHI if the PHI is being sought for certain criminal, civil, and administrative investigations, and proceedings against a patient in connection with a legal abortion or other reproductive care.

These changes are critical to protecting patients as the U.S. Supreme Court decision overturning Roe v. Wade spurred many anti-abortion states to enforce draconian restrictions that could lead to criminal or civil penalties for anyone seeking, providing, or assisting with reproductive care. In the letter, the coalition welcomes the federal government’s proposed HIPAA amendments, which aim to protect against such misuse of this data. The coalition asserts that additional guardrails would help safeguard reproductive health data from being wrongfully accessed and exploited to harm pregnant people or healthcare providers.

“As we witness the alarming erosion of reproductive rights across our nation, it’s imperative that we establish strong federal protections that safeguard health information and privacy,” said Attorney General Brown. “Marylanders deserve assurance that their personal information will not be weaponized to harm and discriminate against them. I will continue to fight to protect the sanctity of reproductive care and ensure that access remains a personal decision free from fear and manipulation.”

The Dobbs v. Jackson Women’s Health Organization decision overturned Roe v. Wade in June 2022, and created a climate of uncertainty and fear among reproductive health care seekers and providers throughout the country. Fifteen states currently have laws in effect prohibiting abortion under all or most circumstances. Everyone involved in assisting, providing, and obtaining such care in those states may be at risk of investigation, civil liability, and criminal prosecution. The amendments would prohibit the use or disclosure of PHI for an investigation into a patient in connection with seeking, obtaining, providing, or facilitating reproductive healthcare if:

  • The patient seeking reproductive healthcare is in a state where such care is lawful; or
  • The patient is seeking reproductive healthcare that is protected under federal law (for example, by the Emergency Medical Treatment and Labor Act), regardless of the state.

The coalition argues that these provisions are essential to creating a more unified privacy landscape for reproductive care, and urged the Biden Administration to immediately adopt the provisions. The coalition also called for the creation of a nationally available, online platform that provides accurate and clear information on reproductive care and privacy rights, and a public awareness campaign to promote the website.

In filing today’s letter, Attorney General Brown joined the Attorneys General of Arizona, California, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, and Wisconsin.