Democratic Senators Propose The SAFER Health Act To Protect Patient Privacy Related To Abortion And Pregnancy Loss Amid Increased Legal Risks

Democratic senators have proposed an update to HIPAA that aims to ban the disclosure of personal health information related to abortion or pregnancy loss without patient consent. The proposed legislation, dubbed the SAFER Health Act, seeks to expand patient privacy protections and is a response to the recent Dobbs case, where the Supreme Court ended the constitutional right to an abortion. The senators aim to protect patients who receive abortions from the intrusive actions of law enforcement agencies. This is an issue that Senator Bennet had already raised when he called on the Biden Administration to update HIPAA to safeguard patients receiving abortions from the reach of law enforcement agencies.

Patients are now at greater risk of having their personal health information used against them in legal proceedings following the recent Dobbs v. Jackson Women’s Health Organization ruling. In a recent case, an Indiana doctor providing abortion care to a 10-year-old rape victim had to take steps to protect the patient’s privacy when a subpoena was issued for her medical records. More than a dozen states have enacted abortion bans, and with the overturning of Roe v. Wade, the risk of personal information being used in court cases has heightened. Although HIPAA limits the sharing of personal health information, reproductive health data can be employed in legal proceedings without the individual’s permission.

“No one should have to worry about being investigated or prosecuted for receiving or providing reproductive health care,” said Bennet. “This legislation will protect the privacy of patients who have had abortions, regardless of where they live or receive care.”

The June 2022 guidance issued by the Department of Health and Human Services (HHS) was a response to the heightened risk of patient privacy violations following the Supreme Court’s Dobbs v. Jackson Women’s Health Organization ruling. The HHS guidance provided clarity to HIPAA-covered entities and their associates on the permissibility of disclosing protected health information without individual authorizations when required by law. The guidance, however, emphasized that such disclosures are not compulsory under the HIPAA Privacy Rule. The HHS also clarified that the sharing of reproductive health information is only allowed under very limited circumstances, a measure that seeks to protect patients seeking essential healthcare services. In cases where privacy breaches occur, the HHS urged affected individuals to file complaints with the OCR to address the violations. Despite the efforts made by the Department of Health and Human Services (HHS) to address the rule in the wake of Dobbs, there is still a pressing need for new federal legislation to tackle the specific risks faced by patients seeking reproductive healthcare services.

The proposed Secure Access for Essential Reproductive (SAFER) Health Act aims to bolster HIPAA’s existing privacy protections by drawing inspiration from the National Institutes of Health’s Certificates of Confidentiality in the Public Health Service Act. The legislation seeks to prohibit HIPAA-covered entities and their associates from disclosing a patient’s personal health information relating to pregnancy termination or loss without the individual’s valid authorization. The proposed Act will apply to various proceedings, including federal, state, local, or tribal civil, criminal, administrative, or legislative proceedings. The legislation would also direct the HHS to revise the HIPAA and health information technology regulations to enforce the Act, as well as lead a nationwide campaign to educate covered entities and their associates on the proposed HIPAA changes.

Senator Hirono stated that MAGA Republicans in states with abortion bans want to prosecute women for seeking reproductive health care by using patients’ reproductive health information against them. “That is why I am proud to introduce the SAFER Health Act—legislation that would strengthen and expand HIPAA to protect women and ensure doctors cannot share personal reproductive health information to a court proceeding without patient consent.”

Senator Michael Bennet has been a vocal advocate for reproductive rights and affordable reproductive healthcare. He has been working diligently to restore privacy rights in the aftermath of the Supreme Court’s decision to overturn Roe v. Wade. Following the Dobbs ruling, Senator Bob joined other Democratic senators in urging President Biden to take measures to protect the right to abortion. In addition, the senator demanded that the Department of Defense take steps to ensure that service members who seek abortion services are safeguarded in light of the ruling. Senator Bennet proposed the Freedom to Travel for Health Care Act to eliminate state-level obstacles to reproductive healthcare and co-sponsored the Let Doctors Provide Reproductive Health Care Act. Although the proposed legislation was blocked, Senator Bennet has remained committed to ensuring access to reproductive health care services.