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Biden administration issues new rule to protect privacy of those seeking reproductive health care: ‘No one should have to live in fear’

By Jacqueline Howard, CNN

(CNN) — Patients have a right to privacy when it comes to their medical information, even when they travel to another state for an abortion, IVF, birth control or other types of reproductive health care, federal officials declared in a new rule.

The final rule, called HIPAA Privacy Rule to Support Reproductive Health Care Privacy, was announced Monday and prohibits the disclosure of a patient’s health information as it relates to reproductive health care, as well as strengthens privacy protections for that patient, their family and their doctors who are providing or facilitating the care.

This means that the rule prevents medical records from being used against people for providing or receiving certain types of reproductive health care — even if a patient traveled to another state for that care, Melanie Fontes Rainer, director of the Office for Civil Rights, said in a news conference Monday.

“This rule prohibits those regulated by HIPAA — health care providers, health plans, clearing houses and their business associates — from using or disclosing a person’s protected health information to conduct an investigation into or impose liability on any person for merely seeking, obtaining, providing or facilitating lawful reproductive health care, including abortion,” Rainer said, referring to the Health Insurance Portability and Accountability Act of 1996.

“If a person receives reproductive health care, such as a pregnancy test or treatment for an ectopic pregnancy, and that reproductive health care is lawful in the state where the care is received, the information about the care cannot be disclosed or used by the health care provider or health plan for an investigation, or to impose liability by law enforcement on the patient or the provider,” she said. “And if the reproductive health care like contraception is protected, required or authorized by federal law, including the Constitution, that may also not be used or disclosed based on this rule.”

Overall, “no one should have to live in fear that their conversations with their doctor or that their medical claims data might be used to target or track them for seeking lawful reproductive health care,” Rainer said.

Last year, the Office for Civil Rights published proposed changes to the HIPAA Privacy Rule and received nearly 30,000 comments from the public in response to what the final rule should involve, according to the US Department of Health and Human Services.

Now, the final rule serves as one part of an ongoing effort by the Biden-Harris administration to protect access to reproductive health care after the overturning of Roe v. Wade, said HHS Secretary Xavier Becerra.

“Each and every American still has a right to their privacy, especially when it comes to their very private, very personal health information,” Becerra said Monday. “Under federal law, you have rights to your privacy. That’s what today is about — is making sure that Americans who convey very personal, private health information to a provider know that they have rights.”

The new rule comes at a time when 14 states have total abortion bans.

Following the Supreme Court’s June 2022 decision in Dobbs v. Jackson Women’s Health Organization, which eliminated a constitutional right to abortion nationwide, nearly two dozen US states have banned or limited access to the procedure. States where abortion is most limited report higher rates of maternal and infant mortality, as well as greater economic insecurity.

Many patients living in states with abortion restrictions have had to travel to states without restrictions in order to receive care, Rainer said Monday.

Under the new rule, “when a woman travels from one state where the care might be banned to another state to receive lawful reproductive health care, no matter what that healthcare is — whether it’s a pill or it’s a procedure or it’s just a medical examination — when that woman goes home, her medical records will be protected,” Rainer said.

“Herself, her providers, her home providers who literally had nothing to do with the care she received in the first instance, they will be protected, and they’ll be able to say ‘No, you cannot have this information,’” Rainer said. “The provider in the state where she traveled will also be protected from folks reaching in to go after that type of medical care, which is one of the main goals of this rule — so that women can seek care, even in the face of the patchwork of laws we have now across the country.”

The fight over abortion continues in many state legislatures and courts. Most recently on April 9, Arizona’s Supreme Court reinstated a 1864 law, rooted in the Civil War era, barring abortion in nearly all circumstances. The ruling, however, has been stayed for two weeks, and the current 15-week ban remains in place in the meantime.

Additionally, the US Supreme Court heard arguments in a case against the abortion pill in March and will hear a challenge to Idaho’s near-total ban this week. In Florida, a six-week ban will replace the state’s current 15-week ban on May 1.

While the new final rule is one step in an effort to protect women’s reproductive rights in the United States, Becerra said that it won’t completely undo the effects that the overturning of Roe v. Wade has had on patients across the country.

“We have no illusion that everything that the President has urged us to do with our authorities is going to undo Dobbs,” Becerra said. “Dobbs took away rights. Until we have a national law that reinstitutes Roe v. Wade, we’re going to have issues.”

CNN’s Annette Choi and Devan Cole contributed to this report.

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