There is « absolutely » a potential for lawsuits, said Roger Severino, who served as head of HHS’s Civil Rights Office under former President Donald Trump and is now the vice chairman of domestic policy at the Heritage Foundation. « I imagine, at the very least, a challenge would come from the state attorneys general, because the administration is interfering with their ability to enforce their own laws. »
Dozens of senior Democrats in the House and Senate, meanwhile, say the draft rules are inadequate for a post-roe deer environment in which Republican-controlled states are trying to more aggressively target abortion providers and anyone who helps a patient bypass state restrictions.
Attacks from both sides highlight the precarious path the Biden administration has been trying to tread since the Supreme Court overturned Roe versus Wade last summer. With no hope of restoring abortion protection through legislation in a divided Congress, the White House has leaned heavily on regulations and executive orders, many of which are drawing criticism from progressives and the right.
The White House declined to respond to criticism of the proposed rule. An HHS spokesperson did not respond to a request for comment.
The proposed expansion of HIPAA is one of the most concrete steps the administration has taken to defend abortion rights since the end of the 20th century. roe deer. If enacted, it would prevent health care providers and insurers from providing information to state officials for the purpose of investigating or prosecuting someone seeking or providing a legal abortion. It would provide greater protections both for people crossing state lines for the procedure and for those who qualify for an exception to abortion bans in their home state, such as in cases of rape, incest or life threatening.
HHS proposed the rules in April and is open for public comment until mid-June. Republican officials and conservative advocacy groups say the policy project it goes too far, violating states’ abortion bans, while nearly 50 Democrats in Congress say it doesn’t go far enough and are pressuring the administration to add more steps before issuing a final rule.
In a letter to HHS Secretary Xavier Becerra shared first with POLITICO, Democrats led by Sens. Ron Widen (D-Hours.) e Patti Murray (D-Wash.) make several requests, including that the administration require law enforcement agencies to « obtain a warrant before forcing doctors, pharmacists and other health care providers to turn in their patients. » [protected health information].”
For now, the proposed rule only requires state officials seeking this information to obtain a subpoena, administrative request, or other type of court order — a bottom bar to clear. And rather than limiting the protections extended to reproductive health care, as the proposed rule currently does, the senators argue that « HHS should enforce this protection across the board, regardless of the illness, disease or medical issue. »
One participant, Rep. Jasmine Crockett (D-Texas), told POLITICO after a panel discussion on abortion rights Monday night that a much stronger rule is needed to stop « rogue attorneys general » from investigating private medical records.
« We need an executive order that explicitly states that under no circumstances, unless a person gives up access to that documentation, should this be allowed, » he said. “They just think it’s everyone’s business if someone has a miscarriage or if someone is going through a [gender] transition. So we have to curb that, because at some point, if you take control of the wrong people, they might end up trying to get records on Viagra and all that.
Yet Severino and other conservatives insist that the proposed rule already exceeds federal authority, violating both the Administrative Procedures Act and the US Constitution.
« If someone says, ‘I will kill myself’ or ‘I will kill someone else,’ healthcare professionals are authorized and in some cases required to disclose that information to law enforcement, » he said. “But if there is an imminent threat to an unborn person in a pro-life state, this rule would prohibit the provider from disclosing that information to save that life. They are creating an abortion exception to the HIPAA regime to please the left-wing base to which Biden and Becerra answer.
Mississippi Attorney General Lynn Fitch — who defended the state’s 15-week abortion ban in the case that was overturned Roe versus Wade last year – led a team of 19 Republican attorneys general a public comment who has repeatedly called the rules « illegitimate » and accused the Biden administration of trying to « take back control over abortion from people in violation of the Constitution. »
While Fitch’s office declined to say whether it is considering its own legal challenge, his letter argues that the rules challenge the central Supreme Court’s ruling in Dobbs— that states have the right to make and enforce their own abortion laws, including the right to seize records and prosecute doctors suspected of violating them.
« Suppose state officials have reason to believe that an abortion provider deliberately performed an abortion in violation of state law, causing serious injury to the woman, and that the provider then falsified medical records and referred the woman to an institution outside by the provider state to cover it up, » write the attorneys general. « State officials clearly would have a basis to investigate that provider. »
The Democratic attorneys general of 23 states and DC have filed comments supporting the proposed rule, as have Blue Cross Blue Shield and other health insurance companies, the Unitarian Universalist church and other religious groups, the American Pharmacists Association and other medical and city officials from Los Angeles, Cleveland and other cities.
Conservative groups Concerned Women for America, Catholic Medical Association, March for Life and the American Association of Pro Life Obstetricians and Gynecologists – one of the groups currently suing the FDA over approval of the abortion drug mifepristone – were among those who they opposed.