Following the annulment of the Roe v. Wade case, patients wonder whether federal law will protect their reproductive health data from state law enforcement or more broadly from legal action. Currently, the answer is no.
If there is a warrant, court order, or subpoena for these medical documents, the clinic is required to hand them over. And patients and providers may face legal risk due to the enormous amount of health-related data we all generate with our devices on a daily basis.
When it comes to medical records, the most relevant law is HIPAA – the Health Insurance Portability and Liability Act. It is possible that federal officials could try to improve this so that reproductive care or abortion documents receive additional protection, but legal experts say this is unlikely in the courts at a time when many judges are reluctant to act by the executive.
While abortion will remain legal in many states, 22 have record regulations that prohibit the procedure or severely restrict access to it, according to the Guttmacher Institute.
It is difficult to know exactly how the state authorities will react to this ruling. Many anti-abortion groups are opposed to the criminalization of abortion patients. Experts have serious concerns about how loopholes in privacy laws have the potential to open up clinicians and patients to legal action, but the issues discussed here are possible, but not sure, ramifications of Friday’s decision.
HIPAA in a post-Roe world
“People believe HIPAA protects much more health information than it actually does,” said Kayte Spector-Baghdady, professor of bioethics and law at the University of Michigan. See the article : ICYMI: State Commissioner of Health Dr. Mary T. Bassett’s Op-Ed in Elle Magazine: If I Were Not Pregnant, I Would Not Be New York Health Commissioner.
It all comes down to state law. She said the federal privacy rule has exceptions that could allow prosecutors to force companies to relinquish information relevant to a criminal investigation – and the same applies to other types of legal action as well.
“All [the service provider] could use to push away is say,” I want to see the warrant “or” I want to see a summons, “said Carmel Shachar, executive director of the Petrie-Flom Health Law Center. Politics, Biotechnology, and Bioethics at Harvard Law School.
While many of the laws restricting abortion focus on service providers, legal experts say some patients may also be at risk.
In states where abortion is prohibited, the mere suspicion that a patient has had an abortion would be enough for law enforcement to view their medical records under the guise of identifying or locating a suspect, said Isabelle Bibet-Kalinyak, a member of Brach Eichler. health protection law practice. “They would still have to have a probable cause,” she said.
There are occasions where it can be difficult for authorities to obtain certain types of sensitive health information – adding hoops to jump without completely shielding the data. “You can say, okay, well, if law enforcement wants reproductive health medical records, they have to work with the federal attorney to get them,” Shachar said. “Perhaps it would be so difficult that prosecutors would be reluctant to take up these cases.”
For example, she mentioned the higher standards of some states regarding the sharing of mental health and HIV status records. But they are currently not available for reproductive health care and will remain permeable.
“I think this is a wake-up call for HIPAA restrictions,” said Adrian Gropper, director of technology, Patient Privacy Rights Foundations. While abortion is a highly biased issue, he sees a need for better patient privacy laws that both Democrats and Republicans could agree on.
At present, most health law experts see very little protection for patient privacy. Take a look at the history of HIPAA cases, Gropper said, and “you’ll find very few examples of enforcement actions involving violations of patient privacy.”
The free flow of data in healthcare and the wider economy can also be used to discriminate directly against people based on the use of reproductive health services. If your employer has a specific position on abortion, you could be denied work if they “used some kind of predictive algorithm” to investigate data available to employers about your healthcare, said Andrea Downing, president and co-founder of The Light Collective, a non-profit organization that advocates stronger protection of health data.
“Everything you do in healthcare, in our current (regulatory) state, can be used against you,” she said.
Health data beyond HIPAA
In states where abortion is banned, patients need to think about more than just official medical records. To see also : Food safety actions are key to building trust, Yiannas says.
“If I was giving advice to my sister or my best friend, the first thing I would say is to be very careful with what data you generate in general,” said Shachar. “We think about medical records, but our phones collect an incredible amount of data. It’s not a good idea to send text messages about your intention to have an abortion. It’s not a very good idea to use an online payment app to buy these services. You can leave the phone at home instead of taking it to the clinic. You may not even want to look for abortion providers on your phone or computer. ”
Spector-Baghdady added that the big health information economy also works outside of HIPAA’s control, allowing developers of menstrual tracking apps and other devices to share customer information with third parties in some cases.
“Some of them (the companies) have sold or shared information that has been fully identified in the past with other companies such as Facebook,” she said. It noted that the state of California recently filed a lawsuit against Glow, which makes menstrual cycle tracking software, for sharing reproductive health information outside of the app. However, the breach in this case was due to California’s stricter data protection rules that do not apply in other states.
In addition, neither HIPAA nor state consumer protection laws prohibit the disclosure of large amounts of health information transmitted outside of healthcare settings – in retail stores, on social networks, online shopping accounts, text messages, and elsewhere.
“The more you go online, the greater your exposure,” said Eric Perakslis, health privacy and cybersecurity expert at Duke University. “You have your CVS account, your online patient portal, your e-mail address for appointment reminders, and your phone’s SMS stream. You can see how the threat is combined. It is very difficult for people to think about because they are divided into sections. “
Perakslis said the impact of the ruling would also result in more racially and economically disadvantageous conditions, as those with the fewest resources cannot always afford to use providers offering stronger privacy protections.
“People with fewer resources can go to a free clinic or Planned Parenthood, while the rich and well-insured head to a nice medical office,” he said. “This type of data stands out more. People with less resources are more vulnerable. “
Crossing state lines for an abortion
The question remains, what could happen if states try to ban their residents from going to other places in the US to have an abortion. Read also : ‘Hit, kick, spit on’: Virginia health workers say they face more violence since pandemic.
The unanimous opinion of Judge Brett Kavanaugh suggested that crossing national borders should not be prohibited. “She believes there is a constitutional right to travel interstate for abortion,” said I. Glenn Cohen, professor at Harvard Law School. Cohen, however, was not sure that other conservative judges would hold the same view.
“There is something very disturbing about the state that says you cannot travel beyond my borders to receive medical care,” said Shachar. “Traditionally, we’ve always had the freedom to move between countries.” This became a problem during the pandemic as states tried to introduce test tickets for out-of-state travelers, but “ultimately the state didn’t really have much leverage to demand it.”
Of course, interstate travel, if legally protected, “may be an option for some people, but not if you are disabled, poor, or have an aggressive partner who will beat you up if they find out,” Cohen said. .
Murky distinction between abortions and miscarriages
Another point is that the same drugs that are used for chemical abortions are also used to treat miscarriages to ensure they are safely expelled from the body.
“In medical records, it will be difficult to tell who is seeking an abortion and who is seeking home care after a miscarriage,” said Shachar.
“What worries me about the lack of privacy of medical records is that even if you are a provider who does not provide abortion, but provides good care for your patients, some of whom will have a miscarriage, this medical record can be detectable and can be used in criminal cases against the supplier ”.
While many states have already instituted miscarriage lawsuits – for drug use during pregnancy, for example – experts warn that such cases could become more frequent. This is just one of the cases where a Supreme Court decision could reveal loopholes in US health privacy laws and could make some patients fearful of seeking medical attention.
When was Roe v Wade decided?
When was the Roe vs Wade decision made? On January 22, 1973, the Supreme Court ruled 7-2 in favor of “Jane Roe” (Norma McCorvey), recognizing that women in the United States have a fundamental right to choose to have an abortion without undue government restrictions or strike. found the Texas abortion ban unconstitutional.
Which judges passed Roe v Wade?
|Armed December 13, 1971 Returned October 11, 1972 Decided January 22, 1973 Returned June 24, 2022|
|Majority||Justice Blackmun, joined by Judges Burger, Douglas, Brennan, Stewart, Marshall, and Powell|
|Convergent||Judges Burger, Douglas and Stewart|
|Dissenting||Judges White and Rehnquist|
Can you overturn a Supreme Court ruling?
When the Supreme Court rules on a constitutional question, the judgment is virtually final; its decisions can only be changed by the rarely used procedure of amending the constitution or by a new ruling of the Tribunal.
What other rights does Roe v Wade protect?
Today, Roe’s supporters describe her as essential to the preservation of women’s rights, personal freedom, bodily integrity, and privacy. Proponents also argued that access to safe abortion and reproductive freedom are generally fundamental rights.
What is the Fourteenth Amendment in simple words? The Fourteenth Amendment to the US Constitution, ratified in 1868, granted citizenship to all persons born or naturalized in the United States – including ex-enslaved people – and guaranteed all citizens “equal protection under the law.” three amendments passed in the era of reconstruction to abolish slavery and …
What does the 14th Amendment do?
The main provision of the 14th Amendment was to grant citizenship to “All persons born or naturalized in the United States”, thereby granting citizenship to previously enslaved people.
Does prior restraint still exist?
Key Findings: Prior Restrictions Under the US First Amendment, which protects speech and freedom of the press, earlier restrictions are considered unconstitutional. There are some exceptions to the prohibitions of prior coercion, including indecency and national security.
When was prior coercion prohibited? The first notable case in which the US Supreme Court ruled on an earlier restriction of liberty was Near v. Minnesota, 283 U.S. 697 (1931). In this case, the Court found the previous restrictions unconstitutional, except in extremely limited circumstances such as national security issues.
What is today’s Supreme Court position on prior restraint?
What is the Supreme Court’s position on prior coercion? A prior restriction is a government prohibition against pre-fact statement or publication. The Supreme Court found it unconstitutional, except in extreme circumstances of national or public security, as an unlawful restriction of the freedom of expression.
What is an example of prior restraint?
The appellate court stated that the injunction was a “classic example of prior limitation” of “the most serious and least tolerated breach of First Amendment rights.” heavy presumption of nullity “and that the contested order was too broad because it prohibited any public speaking …