Tennessee Attorney General Jonathan Skrmetti has joined Republican counterparts in 18 states in an effort to prevent the federal government from shielding the medical records of those who cross state lines to obtain legal abortion or gender-affirming care from investigations in their home state.
The U.S. Department of Health and Human Services (HHS) has proposed a new privacy rule for certain medical records in response to the U.S. Supreme Court’s overturning of abortion rights last year.
The rule would prohibit disclosure of medical records of individuals who seek reproductive health care in a state in which the care is legal to officials or litigants in a home state in which it is not.
Under the proposed rule, the records would be shielded from law enforcement, court subpoenas and in civil lawsuits and family court proceedings.
“The proposed rule here continues the administration’s efforts to override state abortion law,” a June 16th letter from the attorneys general to HHS Secretary Xavier Becerra said.
The letter called the move to amend HIPAA — the Health Insurance Portability and Accountability Act — unconstitutional, a result of “political pressure from the White House” that would interfere with states’ abilities to protect the health and safety of their citizens and to pursue evidence of criminal activity.
The existence of the letter was first reported Friday by the Mississippi Free Press.
A spokesperson for Skrmetti on Monday reiterated the letter’s assertion that the federal agency was overstepping its authority in contemplating the new privacy rule.
“HHS does not have authority to change the law in contradiction of the statute passed by Congress,” Elizabeth Lane Johnson, a spokesperson for Skrmetti, said in a statement Monday.
The rule was first proposed in April after President Joe Biden issued an executive order directing HHS to “consider ways to strengthen the protection of sensitive information related to reproductive health care services and bolster patient-provider confidentiality.”
In unveiling the proposed rule — which is winding its way through the federal government’s rule-making process — HHS Office of Civil Rights Director Melanie Fontes Rainer said it came in response to the concerns of doctors and patients who feared adverse actions against those seeking care in another state that is illegal or restricted in their own.
“Today’s proposed rule is about safeguarding this trust in the patient-provider relationship, and ensuring that when you go to the doctor, your private medical records will not be disclosed and used against you for seeking lawful care,” Fontes Rainer said. “This is a real problem we are hearing and seeing, and we developed today’s proposed rule to help address this gap and provide clarity to our health care providers and patients.”
In their letter, attorneys general pushed back against the notion that they would seek to prosecute those seeking care outside their home state, calling such a claim “fear-mongering.”
Today’s proposed rule is about safeguarding this trust in the patient-provider relationship, and ensuring that when you go to the doctor, your private medical records will not be disclosed and used against you for seeking lawful care.
– Melanie Fontes Rainer, U.S. Department of Health and Human Services
The letter notes that state laws criminalizing abortion consistently provide an exception for women seeking the procedure. While the HHS proposed rule does not explicitly mention transgender care, the attorneys general conclude in their letter that such care would fall under the umbrella of the plan.
Their letter outlined a hypothetical: Should officials believe an abortion provider in their home state provided an illegal abortion, falsified medical records then sent their patient for additional care out of state to cover it up, the HHS rule would bar their investigation, the letter said.
The letter also suggests the rule would bar a complete investigation into misconduct against a doctor licensed in multiple states and “could inhibit state’s investigation of child abuse and other serious crimes.”
While the letter does not specify the circumstances in which child abuse investigations would warrant out-of-state reproductive health care records, it criticizes the federal government’s “radical approach to transgender issues” and says the “administration may intend to use the proposed rule to obstruct state laws concerning experimental gender-transition procedures for minors.”
Download the letter here.
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