Thirty Democratic senators led by Washington’s Patty Murray are calling on the Biden administration to use health care privacy laws to protect patients’ reproductive health information, specifically when it comes to abortion. 

In the letter sent Tuesday, first shared with The 19th, the senators ask the Biden administration to use the Health Insurance Portability and Accountability Act (HIPAA) to prohibit health care providers and personnel from sharing any information about patients’ medical records “without explicit consent.” In particular, the senators want to bar access to the records to law enforcement or anyone who could use them in civil or criminal lawsuits related to abortion.

In the months since Roe v. Wade was overturned, many states enforcing abortion bans have added a slew of new punishments for people who provide the procedure — including life in prison, in some cases, and fines of $100,000. Some states also punish those who help people obtain an abortion.

People who use medical apps such as period trackers have expressed fears that their reproductive health data could be turned over to law enforcement. Some tracking apps are governed under HIPAA’s patient privacy regulations, though most are not.

And those who might take pills on their own to induce medication abortions have reported fears about going to the emergency room, in case someone reports them for a possible illegal abortion. (Medication abortions are indistinguishable from miscarriages.) Those fears aren’t without cause. Pregnant people who have miscarried have long faced the threat of criminal charges, and at least one Texas woman was jailed earlier this year for a suspected abortion. In the post-Roe world, many legal experts and advocates worry that the threat of incarceration could grow in states with abortion bans. 

“Our nation faces a crisis in access to reproductive health services, and some states have already begun to investigate and punish women seeking abortion care,” the senators wrote in the letter, which was addressed to Health and Human Services Secretary Xavier Becerra. “It is critical that HHS take all available action to fully protect women’s privacy and their ability to safely and confidentially seek medical care.”

The letter comes a day after Vice President Kamala Harris met with abortion rights leaders from around the country and within hours of Senate Republicans introducing a bill that would ban all abortions after 15 weeks of pregnancy. 

Since Roe v. Wade was overturned, 11 states have begun to enforce total abortion bans. Three more do not allow the procedure past six weeks of pregnancy. Florida does not allow abortions for people later than 15 weeks of pregnancy. 

Abortion has also become a defining issue in the midterm elections, with polling suggesting that the backlash to Roe’s overturning may have improved Democrats’ chances of keeping the Senate. Republicans who previously embraced abortion bans have retreated from those stances. Murray has also made abortion access a centerpiece of her reelection campaign.  

Earlier this summer, HHS put out guidance reminding health care providers of HIPAA’s privacy protections, noting that disclosures of medical information “are permitted only in narrow circumstances tailored to protect the individual’s privacy.” 

That guidance doesn’t do enough, the senators argued. To build on that, they said, HHS should issue formal rules clarifying that disclosing patients’ medical information — including information relevant to abortion — is explicitly banned. The department should also spend more time directly informing medical providers about what is allowed under the law, devote more resources to educating patients about their rights and prioritize addressing cases that may violate the law’s reproductive health privacy protections, the senators said.

“In order for patients to feel comfortable seeking care, and for health care personnel to provide this care, patients and providers must know that their personal health  information, including information about their medical decisions, will be protected.” 

Originally published Sept. 13, 2022 by The 19th.