In a letter to Health and Human Services Secretary Xavier Becerra on July 1, Senators Michael Bennet, D-Colo., and Catherine Cortez Masto, D-Nev., called on HHS to use its powers to ensure the HIPAA Privacy Rule is better positioned to protect the health information of patients seeking reproductive healthcare.

The Supreme Court's recent decision overturning Roe v. Wade has created "profound uncertainty for patients concerning their right to privacy when making the deeply personal decision to have an abortion," said the senators.

As policy experts have noted, the Dobbs v. Jackson Women’s Health Organization decision has ushered in not just a fraught new era for reproductive health, but also one for data privacy.

The HIPAA Privacy Rule – which healthcare organizations have called to be modernized for years, even before the recent SCOTUS ruling – is now insufficient to protect the health information of patients.

"When HIPAA was signed into law in 1996, Roe v. Wade had upheld the right to an abortion for over two decades," said Bennet and Cortez Masto. "When the HIPAA Privacy Rule was issued in 2000, it would have been unimaginable that the Supreme Court would strip away this fundamental right more than 20 years later."

The Senators said they appreciated the guidance issued by HHS's Office for Civil Rights this past week, clarifying the regulations around private medical information relating to abortion and reproductive health.

"However," they said, "HHS has the authority to do more."

Bennet and Cortez Masto noted that the HIPAA Privacy Rule is meant to "define and limit the circumstances in which an individual’s protected health information may be used or disclosed by covered entities."

As such, they called on HHS to "immediately begin the process to update the Privacy Rule, following all requirements under the Administrative Procedure Act, to clarify who is a covered entity and to limit when that entity can share information on abortion or other reproductive health services."

Specifically, they said, HHS "should clarify that this information cannot be shared with law enforcement agencies who target individuals who have an abortion."

Moreover, the agency should also determine that Pregnancy Care Centers – also known as Crisis Pregnancy Centers – are bound by the requirements of the HIPAA Privacy Rule.

"Millions of Americans have lost a fundamental constitutional right to make their own health and reproductive decisions," said Bennet and Cortez Masto. "We must do all that we can to protect their fundamental right to privacy."

Twitter: @MikeMiliardHITN
Email the writer: mike.miliard@himssmedia.com
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