More than three dozen members of Congress have signed a letter pressuring the Biden administration to step up and close an oversight in federal privacy law that allows law enforcement to obtain access to abortion records and other sensitive health data without a warrant. Lawmakers writing the letter say additional protections are needed to strengthen the Health Insurance Portability and Accountability Act (HIPAA) to protect abortion seekers and other Americans from “warrantless government surveillance.”
Biden’s Department of Health and Human Services previously proposed adding a new rule to HIPPA that would prohibit doctors or healthcare providers from discussing patients’ protected health records following the Supreme Court’s overturning of Roe V. Wade. In their letter, Sens. Ron Wyden, Patty Murray, and Rep. Sara Jacobs say the proposed expansions are “woefully insufficient” and urged the Biden administration to go a step further and ensure that all patients’ protected health information receives the same level of protection as text messages, calls, and location data.
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“Americans expect their PHI [protected health information] to be at least as private as their email and text messages, phone calls and location data,” the lawmakers wrote in a letter addressed to Department of Health & Human Services Secretary Xavier Beccera. “While federal and state courts around the country have recognized the importance of protecting Americans’ medical privacy, HHS’ regulations have lagged behind.”
The Department of Health & Human Services (HHS) did not immediately respond to Gizmodo’s request for comment.
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The letter comes as law enforcement across multiple states consider pursuing prosecutions of abortion seekers. Doctors can’t be forced to testify about their patients’ medical history in courts but law enforcement is currently free to subpoena patient medical records. In theory, those records could be used against patients in criminal cases charging them for seeking an abortion or another medical procedure deemed illegal in a state. The lawmakers argue law enforcement’s ability to subpoena those records without probable cause “undermines patients’ legal protections.”
“Americans should be able to trust that the information they share in confidence with their doctors when seeking care will receive the highest protections under the law, regardless of the specific medical issue,” the lawmakers added.
The lawmakers proposed HHS modify a section of HIPPA to prevent doctors or health care providers from releasing patient records to law enforcement unless the agency has first obtained a search warrant signed by a judge. This tightening of the rules, they argue, would help prevent law enforcement from performing an “end run” around warrant requirements. Additionally, lawmakers want HHS to add language preventing law enforcement agencies from sharing health records with other agencies, Fusion Centers, or government surveillance clearinghouses. Patients should also receive notification when their data is shared with law enforcement, the lawmakers said.
The new proposals are almost certain to receive fierce pushback from conservative lawmakers who’ve already publicly opposed the Biden Administration’s more modest HIPPA expansion plans. Republicans opposed the effort arguing it would violate states’ rights and represents an overreach of presidential power. Legal experts speaking with Politico earlier this year said they expected any HIPPA changes would likely draw lawsuits from bitter attorneys general in Republican-led states. Last month a group of 19 Republican attorneys general released a public comment where they accused the Biden Administration of attempting to illegally “wrest control over abortion back from the people in defiance of the Constitution.”
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