As the battle over abortion rights continues, the issue is expected to remain in the spotlight during the upcoming presidential elections.

The Biden administration made moves this week to further protect reproductive rights, as the issue is central to Democrats’ overall campaign messaging.

On Monday, the Department of Health and Human Services published a final rule to place abortion under the same federal privacy protections as other health data under the Health Insurance Portability and Accountability Act, or HIPAA.

The move strengthens HIPAA by prohibiting the disclosure of protected health information related to lawful reproductive healthcare.

Under the rule, healthcare providers can refuse to give law enforcement access to patients’ health data that could be used to prosecute them in states where abortion is banned or restricted. 

In particular, the rule would help women who travel out-of-state to receive abortions.

Born out of Dobbs

After the Supreme Court overturned Roe v. Wade in 2022, some 14 states have put near-total abortion bans in place, including Oklahoma, Texas, Kentucky, Indiana and Tennessee.

The issue health data privacy protections and how reliable they would be in the face of conflicting laws across the country was further heightened following the Dobbs decision.

“Many Americans are scared their private medical information will be being shared, misused, and disclosed without permission,” noted HHS Secretary Xavier Becerra in a statement. “This has a chilling effect on women visiting a doctor, picking up a prescription from a pharmacy, or taking other necessary actions to support their health.”

Though HIPAA has been around for nearly three decades, healthcare providers have been in a frustrating state of confusion over the rapidly-changing abortion laws landscape, HHS noted in its justification for the rule.

With providers facing punishments like fines and even jail for carrying out an abortion in certain states, many have felt uncertain about the grey area of laws around abortion — such as whether federal protections over health emergencies would take priority over a state abortion ban.

Office for Civil Rights (OCR) Director Melanie Fontes Rainer said in a statement that “providers have shared concerns that when patients travel to their clinics for lawful care, their patients’ records will be sought… Patients and providers are scared, and it impedes their ability to get and to provide accurate information and access safe and legal health care.”

This rule aims to clarify some of that, as it protects patients in conservative states who travel to receive abortions in states where it’s still legal. 

Doctors, insurers and other healthcare providers won’t be able to share their patients’ data in criminal investigations related to reproductive healthcare in these cases.

Conservative pushback

While abortion rights advocates praised the move, some conservatives expressed opposition to it. 

Roger Severino, who was appointed OCR director under the Trump administration, said the new rule “puts medical providers in an impossible situation.” 

“Either they comply with federal law with respect to a warrant or they violate the HIPAA rule, which could carry criminal penalties.”

Pro-choice advocates also took to Twitter to praise the move, noting the measure was a crucial win for reproductive health privacy.

This week, Biden administration lawyers have also been at the Supreme Court to defend another effort by the HHS to protect abortion under emergency services — in particular, a rule that requires ERs to care for patients facing an emergency medical condition like abortion complications, regardless of state law.