There is “absolutely” a potential for legal challenges, said Roger Severino, who served as the head of HHS’ Office for Civil Rights under former President Donald Trump and is now vice president of domestic policy at the Heritage Foundation. “I would imagine, at the very least, that a challenge would come from state attorneys general, because the administration is interfering with their ability to enforce their own laws.”
Dozens of top Democrats in the House and Senate, meanwhile, say the draft rules are inadequate for a post-Roe environment in which Republican-controlled states are seeking to more aggressively target abortion providers and anyone who helps a patient circumvent state restrictions.
“I get why the administration wants to take this position,” Sen. Ron Wyden (D-Ore.), a leader of the effort, told POLITICO on Tuesday. “But it’s really a mistake, substantively and politically, to just throw in the towel and let the government make a policy that doesn’t come close to dealing with the risk women are facing.”
The attacks from both sides highlight the precarious path the Biden administration has tried to navigate since the Supreme Court overturned Roe v. Wade last summer. With no hope of restoring abortion protections through legislation in a divided Congress, the White House has largely leaned on rulemaking and executive orders — many of which are drawing criticism from progressives and the right.
The White House declined to respond to the criticism of the proposed rule. A spokesperson for HHS did not respond to a request for comment.
The proposed HIPAA expansion is one of the most concrete steps the administration has taken to defend abortion rights since the end of Roe. If enacted, it would bar health care providers and insurers from turning over information to state officials for the purpose of investigating or prosecuting someone who seeks or provides a legal abortion. It would provide more protections both for people who cross state lines for the procedure and those who qualify for an exception to abortion bans in their home state, such as in cases of rape, incest or life endangerment.
HHS proposed the rules in April and opened them for public comment through mid-June. Republican officials and conservative advocacy groups say the draft policy goes too far, infringing on states’ abortion bans, while nearly 50 Congressional Democrats say it doesn’t go far enough, and are pressuring the administration to add additional measures before releasing a final rule.
In a letter to HHS Secretary Xavier Becerra shared first with POLITICO, Democrats led by Sens. Ron Wyden (D-Ore.) and Patty Murray (D-Wash.) make several demands, including that the administration require law enforcement to “obtain a warrant before forcing doctors, pharmacists, and other health care providers to turn over their patients’ [protected health information].”
For now, the proposed rule requires only that state officials seeking this information get a subpoena, administrative request, or other kind of court order — a lower bar to clear. And rather than limiting the expanded protections to reproductive health care, as the proposed rule currently does, the senators argue that “HHS should apply this protection across the board, regardless of the illness, disease, or medical issue.”
Wyden said he’s particularly worried about state agencies and law enforcement demanding information from retail pharmacies that have pledged to stock abortion medications.
“I’ve been investigating pharmacy chains for the last two months on their privacy practices, and I can tell you that health care providers are turning over Americans’ sensitive health records without a warrant every single week,” he said. “And, for the most part, the patients are never going to be told that the information was turned over. That’s why this rule is so unacceptable. We’re talking about uterus surveillance.”
Another letter participant, Rep. Jasmine Crockett (D-Texas), told POLITICO after an abortion rights roundtable Monday night that a much stronger rule is needed to block “rogue attorney generals” from going after private health records.
“We need an executive order explicitly stating that under no circumstances, unless a person waives access to that documentation, should this be allowable,” she said. “They just think it’s everybody’s business if somebody has an abortion or if somebody is going through a [gender] transition. So we’ve got to rein this in, because at some point in time, if you get the wrong people in control, they may end up trying to get records on Viagra and everything else.”
Yet Severino and other conservatives insist the proposed rule already oversteps federal authority, violating both the Administrative Procedures Act as well as the U.S. Constitution.
“If someone says, ‘I’m going to kill myself’ or ‘I’m going to kill somebody else,’ medical providers are allowed and in some cases required to disclose that information to law enforcement,” he said. “But if there’s an imminent threat to an unborn person in a pro-life state, this rule would prohibit the provider from disclosing that information to save that life. They’re creating an abortion exception to the HIPAA regime for the sake of pleasing the left base that Biden and Becerra answer to.”
Mississippi Attorney General Lynn Fitch — who defended the state’s 15-week abortion ban in the case that overturned Roe v. Wade last year — led a group of 19 Republican attorneys general on a public comment that repeatedly called the rules “unlawful” and accused the Biden administration of trying to “wrest control over abortion back from the people in defiance of the Constitution.”
While Fitch’s office declined to say whether she is considering her own legal challenge, her letter argues that the rules defy the core Supreme Court holding in Dobbs — that states have the right to enact and enforce their own abortion laws, including the right to seize data from and prosecute doctors they suspect of violating them.
“Suppose that state officials had reason to believe that an abortion provider deliberately performed an abortion in violation of state law, resulting in serious injury to the woman, and that the provider then falsified medical records and referred the woman to an out-of-state provider to cover it up,” the Attorneys General write. “State officials would clearly have a basis to investigate that provider.”
Democratic attorneys general from 23 states and D.C. submitted comment in support of the proposed rule, as did Blue Cross Blue Shield and other health insurance companies, the Unitarian Universalist church and other faith groups, the American Pharmacists Association and other medical groups, and municipal officials from Los Angeles, Cleveland and other cities.
The conservative groups Concerned Women for America, Catholic Medical Association, March for Life, and the American Association of Pro Life Obstetricians and Gynecologists — one of the groups currently suing the FDA over approval of the abortion drug mifepristone — were among those that opposed.