New HIPPA Expansion Protects the Privacy of Women Who Have Abortions

Key Points

• The Biden-Harris administration announced a new rule extending the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA).
• This new ruling is intended to protect patients' privacy regarding reproductive health matters—including abortion—to increase access to safe and effective medical care.
• The rule could be particularly impactful for the thousands of patients who travel to abortion-legal states to terminate their pregnancies.

Healthcare providers are now barred from disclosing information about abortion to prosecutors or law enforcement, even if their patient traveled to another state for the procedure, the Biden administration announced Monday, April 21, 2024.

The new rule also protects patients' right to privacy regarding other types of reproductive medical care, including birth control and IVF.

What is the new Biden rule regarding abortion privacy?

The HIPAA Privacy Rule to Support Reproductive Healthcare Policy expands the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), according to the Department of Health and Human Services (HHS).

The original HIPPA law prevents healthcare providers, insurance companies, clearinghouses and associated businesses from sharing people's health records and personal identifying information without their permission, except in specific circumstances.

"The new rule prohibits those regulated by HIPAA from using or disclosing protected information to conduct criminal investigations or sue people for seeking, obtaining, providing or facilitating lawful reproductive care," said Melanie Fontes Rainer, director of the Office for Civil Rights, in a press conference shared by PBS News Hour.

This includes pregnancy tests, treatment for ectopic pregnancies, birth control, abortions and fertility treatments.

As well as safeguarding the privacy of women who get abortions, the new legislation adds protections for patients' families and providers, according to the U.S. Department of Health and Human Services (HHS).

How does the new federal rule affect out-of-state abortions?

Law enforcement can't use a patient's medical records against them, their healthcare team or loved ones if they live in a state with a restrictive abortion law and travel to an abortion-legal state to seek care.

The new rule also safeguards information regarding reproductive health care that is protected, required or authorized by the U.S. Federal law or constitution, regardless of what state it is performed in.

This includes contraception, currently federally protected under Supreme Court rulings, such as Griswold v. Connecticut. The rule also states that covered entities can't share information about care they didn't provide.

"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.

Notably, the new rule doesn't apply to people who seek, receive or provide abortions or other services in states where it's illegal.

If a patient in an abortion-illegal state receives a positive pregnancy test at their doctor's office, obtains abortion pills through the mail and takes them at home, for example, when the patient returns and takes a negative pregnancy test at a follow-up visit, their provider could disclose their pregnancy history to law enforcement.

Medication abortions accounted for roughly 63 percent of procedures in the United States in 2023, according to the Guttmacher Institute.

In April 2024, the Supreme Court is currently considering whether to curb nationwide access to mifepristone, one of two medications commonly used in miscarriage and medical abortion care, in a case brought by anti-abortion activists and lawyers.

The new rule will take effect 60 days after it's published in the Federal Register and require covered entities to comply within 240 days, according to the American Hospital Association.

Recommended

• How I Terminated My Pregnancy: In a place where abortion is illegal, I am grateful I was able to choose to end my pregnancy.
• Miscarriage and Medication Abortion Are Medically Indistinguishable: Your doctor doesn't need to know: Symptoms and treatment following abortion or miscarriage are identical.
• What to Expect Postabortion: The physical, the emotional, the hormonal. Abortion recovery involves many facets of the body and mind.

Why did abortion care and recovery become private?

Under HIPAA, covered entities aren't required to share protected health information with law enforcement but can do so. Generally, providers are discouraged from divulging patients' data unless they think it's necessary to prevent imminent harm. For example, if they have reason to believe the patient may hurt themselves or someone else.

The new rule prohibits covered entities from sharing information related to lawful reproductive health services unless the requester has a signed attestation that they're seeking it for a permissible purpose. Even then, if a provider complies with the request, HIPAA requires them to divulge as little as possible.

"The expanded coverage should provide additional protection for providers who feel pressure to cooperate with law enforcement," Fontes Rainer said.

In theory, it will also help patients feel safer seeking medical care, explained HHS Secretary Xavier Becerra in a news release.

"Many Americans are scared their private medical information [is] being shared, misused, and disclosed without permission," he added. "This has a chilling effect on women visiting a doctor, picking up a prescription from a pharmacy or taking other necessary actions to support their health."

Unlike abortion in early America, the procedure today is incredibly safe and effective.

Research indicates only two percent of abortions result in complications, most of which are minor, involving bleeding, pain or mild infection, indicated a 2023 report. Doctors don't routinely ask people to follow up unless they have a concern, although patients sometimes seek aftercare treatment to confirm their medication abortion worked.

"Many residents of abortion-illegal states have voiced concerns about the potential legal repercussions of seeking such care," Rainer said in the press release.

"People in states with strict abortion bans have also expressed fears about obtaining care for other medical needs, including ectopic pregnancies—which are lethal without proper treatment—and miscarriages," Rainer said.

The rule is also important because some states, such as Texas, Idaho, Alabama and Tennessee, have sought to criminalize helping people travel to obtain abortions. So far, Idaho is the only state to have enacted such a law, according to Associated Press reporting.

An estimated 92,100 people crossed state lines to get abortions in the first half of 2023, more than twice the number during a similar period in 2020, according to the Guttmacher Institute.

The new rule could curb concerns that friends, family members or advocates could also be prosecuted for aiding in so-called "abortion trafficking."

Abortion access—or lack thereof—affects millions of Americans across many demographics, according to Planned Parenthood:

• About one in four women will get an abortion by age 45 
• Of those who receive abortions, about 45 percent are married or living with their partner and 59 percent already have children.
• About 62 percent are religious—24 percent being Catholic, 30 percent Protestant and eight percent identifying with another religion

The majority of people who receive an abortion have no regrets, according to a 2020 report.

About 62 percent of U.S. adults believe abortion should be legal in most or all cases, indicated a 2023 Center Survey. By contrast, 36 percent said it should be illegal in most or all cases.

Roughly 93 percent of abortions take place in early pregnancy, before 13 weeks, per the Centers for Disease Control and Prevention (CDC).

The bottom line

In most cases, prosecutors and states haven't sought legal action against people who seek or receive abortions, but the new federal expansion of HIPAA could help women feel more confident that they have control over their private information.

Proponents hope it will also alleviate concerns for those who lawfully provide or facilitate reproductive healthcare procedures.

"Every American still has a right to their privacy, especially when it comes to their very private, very personal health information," Becerra told the press.

If you believe your or someone else's HIPAA privacy rights have been breached, you can contact the HHS Office for Civil Rights for more information and, if necessary, file a complaint.