Article
Aborted Confidentiality (forthcoming)
Boston College Law Review
(2024)
Abstract
On April 17, 2023, the federal Department of Health and Human Services (HHS) published a proposed rule that would amend the HIPAA Privacy Rule to better protect the confidentiality of reproductive health information, including abortion information, during criminal, civil, and administrative investigations and proceedings. In theory, the proposed rule would ensure the confidentiality of all patients who seek reproductive health care, including abortion care. After all, the title of the proposed rulemaking is “HIPAA Privacy Rule to Support Reproductive Health Care Privacy” and HHS’s press release announcing the rulemaking states that it “ensur[es] that when you go to the doctor, your private medical records will not be disclosed and used against you for seeking lawful care.” That said, the proposed rule does not live up to its billing. Instead, it continues to subordinate health information confidentiality to law enforcement in several situations involving reproductive health care.
In this Article, I argue that this regulatory subordination undermines the physician-patient relationship; discourages or delays individuals from seeking health care from licensed health care providers; unduly burdens racial and ethnic minorities, individuals with disabilities, individuals of low socioeconomic status, and other marginalized individuals; and places physicians in an impossible predicament that endangers lives. Under the proposed rule, physicians who perform life-preserving abortions and provide other emergency care risk criminal prosecution when third parties disagree regarding the necessity of the care and are permitted to disclose evidence of such care to law enforcement. In turn, the fear of criminal investigation and prosecution leads to professionals refusing to provide or delaying in providing standard-of-care health services, increasing the chance of patient injury and death.
The HIPAA Privacy Rule must be re-written in a way that supports the health, safety, and welfare of all individuals seeking reproductive health care and protects the medical decision making of treating physicians. Borrowing from federal laws that provide heightened confidentiality protections to psychotherapy notes and substance use disorder treatment records, I justify additional amendments to the HIPAA Privacy Rule and provide direction to HHS regarding the implementation of these amendments. If adopted by HHS, these amendments will improve the health, safety, and welfare of individuals seeking reproductive health care and support the medical decision making of professionals who provide such care.
Keywords
- privacy,
- confidentiality,
- reproductive health,
- abortion,
- HIPAA,
- mental health,
- bioethics,
- medical humanities
Disciplines
Publication Date
Summer July, 2024
Citation Information
Stacey A. Tovino. "Aborted Confidentiality (forthcoming)" Boston College Law Review (2024) Available at: http://works.bepress.com/stacey-tovino/41/