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Democrats Urge Biden Administration to Use HIPPAA to Protect Abortion Rights and Privacy

The 19th News, September 13, 2022

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 law enforcement or anyone who could use the records 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 attain an abortion. People who use medical apps such as period trackers have expressed fear 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 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.

EXPLAINER: States Scramble as US Abortion Landscape Shifts

The Seattle Times, September 15, 2022

Almost three months after Roe v. Wade was overturned, the landscape of abortion access is still shifting significantly in some states, sometimes very quickly. Changing restrictions and litigation in neighboring Indiana and Ohio this week illustrate the whiplash for providers and patients navigating sudden changes in what is allowed where. Sister clinics who just weeks ago were sending patients from Ohio, where most abortions were banned, to Indiana, where the procedure was allowed, have now flip-flopped roles after the two states’ access restrictions reversed, at least temporarily. Here is a deeper look at the current state of the shifting national landscape: WHAT CHANGED THIS WEEK? An Ohio judge blocked enforcement on Wednesday of the state’s ban on most abortions after fetal cardiac activity is detected. The ban had been in effect since shortly after the U.S. Supreme Court overturned Roe on June 24. The judge’s action allows abortions to resume in pregnancies up to 20 weeks’ gestation for 14 days. Then, on Thursday, a new Indiana law took effect that bans most abortions, marking its status as the first state in the nation to approve new abortion restrictions since the high court’s abortion ruling. Republican Gov. Eric Holcomb signed the ban into law Aug. 5. Under the new law, abortions are permitted only in cases of rape and incest before 10-weeks post-fertilization; to protect the life and physical health of the patient; or if a fetus is diagnosed with a lethal anomaly. A doctor who performs an illegal abortion or who fails to file required reports must lose their medical license. HOW IS THIS AFFECTING PROVIDERS? All seven Indiana abortion clinics lost their licenses Thursday under the state’s new law, which allows abortions to only be performed in hospitals or outpatient surgical centers owned by hospitals. More than 98% of the state’s abortions were done by those clinics in 2021. Abortion clinics in the state told The Associated Press they will remain open to refer patients out of state, including to neighboring Ohio. “I thought that today would be the worst day,” Dr. Katie McHugh, a provider at the Indianapolis abortion clinic Women’s Med, told the AP on Thursday. “But I think the worst day was yesterday, knowing that the patients that we saw in the office yesterday were the last ones that we would see, and knowing how much it meant for all of us that were there — the staff, the physicians and the patients — that we were able to provide that care to the last moment.”

‘How Do We Support Each Other?’: A Physician and Ethicist on the Difficult Decisions Doctors Now Face in Abortion Care

STAT News, September 15, 2012

As new abortion bans are enacted around the country, physicians working with pregnant patients are facing potential ethical and legal dilemmas. Even if a law allows for an exception when the life of the mother is at risk, there are no clear answers for doctors trying to decide if and when they can act. Matthew Wynia is a physician who has spent decades focused on medical ethics, including roles at the helm of the ​​Ethics Institute at the American Medical Association and the Ethics Forum of the American Public Health Association. What should physicians do when following the law could harm, or kill, the patients they’ve taken an oath to care for? STAT spoke with Wynia, who authored a perspective piece in the New England Journal of Medicine that poses a path to consider: professional civil disobedience. Can you give an overview of what you’re proposing in NEJM? There are going to be — and there already have been — a number of reported instances where doctors, nurses, and other health professionals feel like they cannot live up to the standard of medical care and their ethical responsibility to do their best for their patients and still stay within these laws. And that poses a tremendous dilemma for any individual health professional. But I’m not actually calling on individual professionals to disobey laws. Some will — most clinicians are not so radical. There’s such consistent messaging from professional associations right now about the negative impact of the Dobbs decision on our ability to practice good medicine. It’s really remarkable. Every major medical group has come out with a statement saying this is going to harm patients and it puts doctors in an untenable position of having to choose whether to stay within the bounds of the law or risk going outside the law in order to do the right things for their patients. And so the question I wanted to raise is, beyond issuing those statements, what are we going to do as a profession, not as individuals, but as a profession? How do we support each other when these cases start to come down the pike — because they’re coming — where doctors are going to be prosecuted because they have chosen to adhere to the standard of care? That was why I called it professional civil disobedience, as opposed to individual civil disobedience.

Lindsey Graham’s “Late-Term” Abortion Ban Is a Lie

The Intercept, September 13, 2022

ON TUESDAY, South Carolina Republican Sen. Lindsey Graham announced plans for a federal abortion ban. Anyone who has paid even marginal attention to the right’s long assault on reproductive justice expected this move. This was never about states’ rights; a nationwide ban, a mass criminalization program, was always the plan. Graham held a press conference with anti-abortion leaders to announce the introduction of the “Protecting Pain-Capable Unborn Children from Late-Term Abortions Act” — a 15-week ban, aligned with the current restrictive legal status quo in post-Roe v. Wade Florida. The bill’s title toes a delicate line for Republicans, signaling the developing GOP approach when it comes to achieving the unpopular goal of banning abortion nationally but couching it in qualified language to not alienate voters in the midterms who would oppose a total ban. Graham’s proposal would ban all abortions after 15 weeks with very few exceptions, beyond risk to the mother’s life and cases of rape or incest, applicable only after fulfilling typically burdensome reporting requirements. Contrary to several spurious claims in the bill’s text, 15 weeks is an arbitrary time frame, denoting nothing particular about fetal growth or experience. The ban would, however, serve its purpose of ensuring a far greater number of enforced births and criminalizing medical care. This is not an effort to regulate already rare “late-term abortions.” If “late-term,” which is not a medical term but a political contrivance, conjures images of almost-babies, it is misleading to the extreme when applied to a 15-week ban. Fetal viability — another slippery concept — is not considered to occur until around 24 weeks. Graham has previously introduced bills using the same “late-term” vocabulary, but those consistently sought to ban abortion nationally from 20 weeks. Congressional Republicans are threading the needle. They — and their most fervent Christo-nationalist supporters — have a clear desire to decimate women and pregnant people’s bodily autonomy, but after seeing the backlash to their support for overturning Roe, they also harbor a fear of losing votes by revealing a hard-line stance. Graham himself has little to lose come November; he is not up for reelection until 2027. His proposed abortion ban is, however, reflective of what the GOP can try to present as a compromise. It should, of course, be rejected as such. Reproductive freedom should not be a question of compromise to protect just some abortions. The stand against forced birth should have no caveats.

Poll: Americans Say Politicians Aren’t ‘Informed Enough’ to Set Abortion Policy

Politico, September 15, 2022

As Republicans in state capitals and Washington race to enact new restrictions on abortion following the fall of Roe v. Wade, a new poll shows that Americans have a message for lawmakers: Slow down and learn. Seven in 10 Americans don’t think politicians “are informed enough” about abortion to “create fair policies” — a position held by majorities of both Democrats and Republicans, according to the survey of more than 20,000 adults by The 19th, a news organization focused on gender and politics, and SurveyMonkey. A majority of Americans also said they think abortion should be legal in all or most cases, while 35 percent said abortion should be illegal in all or most cases. The data sheds new light on a top issue for both parties in the final weeks ahead of the November election. By overturning Roe v. Wade, the U.S. Supreme Court sent the power to determine abortion policy back to the states, triggering new abortion restrictions across the country and juicing interest in the midterm elections among Democrats and women more broadly. Abortion has shot up as a key issue among voters, and it has partially fueled an improved outlook for Democrats in November. And the issue is only getting more relevant as the general election draws nearer. This week, Sen. Lindsey Graham (R-S.C.) rolled out proposed federal legislation that would put in place a national ban on abortions after 15 weeks of pregnancy, a bill that immediately divided Senate Republicans wary of stepping into a state issue — and potentially inflaming a debate that has been hurting the party this summer. The poll from The 19th also reflects broad confusion among Americans over exactly what the end of Roe v. Wade will mean for abortion policy in the long term. According to the survey results, 44 percent of people think abortion will become less accessible during their lifetime — while 22 percent believe they will gain more access. Notably, women are more pessimistic about the notion that abortion access could expand, with 48 percent saying they think abortion will be harder to access ,versus 40 percent of men who agreed. General pessimism about government pervades the results. Only 4 in 10 adults said American institutions are “working well for them.” The split is even more stark by party: Over half of Democrats agreed with that statement, while only 28 percent of Republicans said America’s institutions work well for them.

ICYMI: In Case You Missed It

Key health care policies like abortion access go hand-in-hand with work and care policies like #EqualPay—and that puts women’s health at risk. These risks are even greater when it comes to the health and economic well-being of women of color: https://t.co/ulzRlqJgvx

— National Partnership (@NPWF) September 8, 2022

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Note: The information contained in this publication reflects media coverage of women’s health issues and does not necessarily reflect the views of the National Partnership for Women & Families.