Red states seek out-of-state medical records to prosecute abortions, gender-affirming care

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18 Republican attorneys general are seeking out-of-state medical records in order to investigate and potentially prosecute people who have an abortion in less-restrictive states.

In April, the Biden administration proposed a new HIPAA rule to prohibit healthcare providers from sharing an individual’s health information when the purpose is “to investigate, sue, or prosecute an individual, a healthcare provider, or a loved one simply because that person sought, obtained, provided, or facilitated legal reproductive health care, including abortion.” Currently, it is legal for healthcare workers to share abortion information with law enforcement when they believe a crime was committed. The new rule would require a court order, like a subpoena, in order for officials to obtain the out-of-state abortion information of an individual.

A letter signed by nearly 50 Congressional Democrats, led by Sens. Ron Wyden (OR) and Patty Murray (WA), argues that the proposed rule does not go far enough and should require law enforcement to obtain a warrant. Further, the lawmakers say the proposed rule should cover all health information, not just abortion-related healthcare. States that ban gender-affirming care, for example, could seek information on residents that travel to another state to obtain hormone therapy.

Red states, on the other hand, argue that the proposed rule interferes with state’s rights. The attorneys general of 18 states—Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kentucky, Mississippi, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, and Utah—signed a letter saying the HIPAA change “would unlawfully interfere with States’ authority to enforce their laws, and does not serve any legitimate need.”

The proposed rule cannot be reconciled with our constitutional system. Under our system, States have broad authority to protect health and safety. And States have the corresponding authority (and duty) to address violations of their laws. The proposed rule trespasses on and interferes with state authority…The proposed rule would interfere with States’ ability to obtain evidence that could reveal violations of their laws. This intrudes on core state authority…As the Supreme Court recently made clear, however, States have a compelling interest in protecting life, health, and the medical profession in the context of abortion. Dobbs, 142 S. Ct. at 2284. And States’ authority to enact and enforce laws furthering those interests does not depend on HHS’s say so. The proposed rule is at odds with the Constitution.

The Republican AGs continue, saying they are concerned that the proposed rule would also be used to protect gender-affirming care obtained in other states:

The proposed rule focuses on abortion. But its broad definition of reproductive health care includes “health care related to reproductive organs, regardless of whether the health care is related to an individual’s pregnancy or whether the individual is of reproductive age.” Given its far-reaching and radical approach to transgender issues, the Administration may intend to use the proposed rule to obstruct state laws concerning experimental gender-transition procedures for minors (such as puberty blockers, hormone therapy, and surgical interventions).

The letter suggests that a red state coalition would likely sue if the Biden administration moves to finalize the rule.

  • Note that Idaho’s Attorney General, Raúl Labrador, signed onto the letter. Idaho recently created a crime called “abortion trafficking” that makes it a felony to help a minor get an abortion across state lines without parental consent. The law gives sole discretion to the Idaho attorney general to bring charges if a county prosecutor declines to do so and could potentially be used to charge physicians who refer patients to out-of-state abortion providers.

Some on the right want to go even further than allowing state officials to investigate out-of-state abortions: Roger Severino of the Heritage Foundation (and a former Trump official) is advocating for healthcare providers to be mandated abortion reporters.

“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.”


Medical records aren’t the only way that law enforcement could prosecute women for obtaining out-of-state abortions. Last month, civil liberties groups revealed that California police departments have been illegally sharing license plate data with out-of-state agencies.

According to information collected by the Electronic Frontier Foundation (EFF), the American Civil Liberties Union of Northern California (ACLU NorCal), and the American Civil Liberties Union of Southern California (ACLU SoCal), 71 California police agencies in 22 counties are sharing automated license plate reader (ALPR) data:

ALPR technology is a powerful surveillance system that can be used to invade the privacy of individuals and violate the rights of entire communities. ALPR systems collect and store location information about drivers whose cars pass through ALPR cameras’ fields of view, which, along with the date and time of capture, can be built into a database that reveals sensitive details about where individuals work, live, associate, worship, seek medical care, and travel…Law enforcement officers in anti-abortion jurisdictions who receive the locations of drivers collected by California-based ALPRs may seek to use that information to monitor abortion clinics and the vehicles seen around them and closely track the movements of abortion seekers and providers.This threatens even those obtaining or providing abortions in California, since several anti-abortion states plan to criminalize and prosecute those who seek or assist in out-of-state abortions.

A recent report, entitled “Roadblock to Care: Barriers to Out-of-State Travel for Abortion and Gender-Affirming Care” by the Surveillance Technology Oversight Project (STOP), warns that lawmakers in states that seek to protect abortion and gender-affirming care must take action to preserve the right to travel anonymously and safely.

Healthcare seekers’ very need to travel can be used against them. Prosecutors bringing criminalized healthcare charges have relied on digital surveillance data in healthcare prosecutions. Typically, the data comes from smartphones: a person’s texts, their internet search history, or their online purchase records. The Federal Trade Commission and tech companies like Google have rushed to prevent prosecutors and state officials from using phones’ geolocation data to place individuals at healthcare clinics. But even when smartphone data is out of reach, travel data can be used to corroborate accusations against known healthcare travelers and to identify yet unknown healthcare seekers. License plate data, Uber and Lyft data, and even bikeshare data can be used to reveal that someone traveled to a reproductive or gender-affirming healthcare clinic…

State bans on vital healthcare are creating a crisis right here in the U.S.. State laws that counter these bans by creating healthcare sanctuaries help travelers. But as long as states, private companies, and federal agencies continue to restrict or prohibit anonymous travel and cash payment, and collect and leak healthcare seekers’ personal data—travel data, healthcare data, smartphone data, payment data—they will not effectively shield healthcare seekers from investigation and prosecution.

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