Attorney General Lynn Fitch wants to ensure Mississippi authorities are allowed to investigate and gather information on abortions performed out of state on Mississippi women.
Fitch, Mississippi’s first-term Republican attorney general, and 18 other state attorneys general have filed comments in opposition to a proposed change to federal regulations, known as HIPAA, that protects the privacy of people’s health care.
Under the rule change proposed by the Department of Health and Human Services, state agencies would not be able to glean information on an abortion performed in a state where abortion is legal. For instance, if a woman from Mississippi, where abortion is illegal in most instances, traveled to a state where abortions are allowed to receive the procedure, a Mississippi law enforcement agency would not be able to gather information on the procedure under the proposed rule.
Fitch and the other attorneys general, though, argue their states should be able to track that personal health care information. The comments from the attorneys general were submitted on Fitch’s letterhead to U.S. Health and Human Services Secretary Xavier Becerra on June 16.
The federal Health Insurance Portability and Accountancy Act ensures that patient information remains private. But in the AGs’ comments in opposition to the rules change, they said there always has been an exception for law enforcement and regulatory agencies to investigate possible violations of state law or when such an investigation was to protect the public health.
“The proposed rule defies the governing statute, would unlawfully interfere with states’ authority to enforce their laws, and does not serve any legitimate need,” Fitch and the other AGs wrote. “Relying as it does on a false view of state regulation of abortion, the proposed rule is a solution in search of a problem.”
The proposed rules change comes about a year after the U.S. Supreme Court, in a Mississippi case brought by Fitch and her office, overturned the long-standing Roe v. Wade decision that guaranteed a national right to abortion. As a result of the 2022 Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization, some states like Mississippi have banned abortions in most instances, while abortion remains legal in other states.
Fitch’s office referred to her written response when asked why she opposes the rule change, since under Mississippi law a woman would not be punished for having an abortion. Mississippi law punishes health care providers for performing abortions. But Mississippi law could not punish a doctor for providing an abortion in a state where the procedure is legal.
The AGs said in their comments the issue of punishing women who receive abortions is “fearmongering” since states are not holding the women who receive abortion liable. Idaho, whose attorney general joined Fitch in opposing the proposed rules change, has passed a law that, according to reports, could criminalize a person who helps “facilitate” an abortion.
The AGs cited as an example an instance where they believed the proposed rules change would interfere with a legitimate investigation.
“Suppose that state officials had reason to believe that an abortion provider deliberately performed an abortion in violation of state law, resulting in serious injury to the woman, and that the provider then falsified medical records and referred the woman to an out-of-state provider to cover it up,” the AGs argued. “State officials would clearly have a basis to investigate that provider for a potential violation of state law.”
The attorneys general reasoned a state might need to gather information from the out of state health care provider in building its case against the doctor who performed the botched, illegal abortion.
“The proposed rule rests on the misguided assumption that it will be readily apparent or ascertainable whether particular ‘reproductive health care’ services are lawfully provided,” the AGs wrote. “But the purpose of investigation is to determine whether lawbreaking has occurred.”
But the proposed rule does seem to provide exceptions to the privacy protections in unusual circumstances. It takes into account that there could be instances where out of state providers would release information to a state like Mississippi through a court order.
When the proposed rules change was announced, HHS Secretary Becerra said, “We believe that this rule will assure that doctors, other health care providers and health plans will not be disclosing individuals’ protected health information, including information related to reproductive health care under certain circumstances.”
Various groups have said that the rule could also impact issues related to gender affirming care. Many states, including Mississippi, have banned the use of gender affirming treatment for minors such as puberty blockers and hormone therapy. The rule, the attorneys general said, could impact those laws if a family from Mississippi, for instance, traveled to another state to obtain such treatment.
“The (Biden) administration may intend to use the proposed rule to obstruct state laws concerning experimental gender transition procedures for minors,” the AGs said.
According to the Kaiser Family Foundation, “most major medical associations” have endorsed a certain level of gender affirming treatment for minors based on the patient’s medical condition.