To combat the uncertainty surrounding a post-Roe world, the Secure Access for Essential Reproductive (SAFER) Health Act seeks to address gaps in current health privacy laws for those seeking reproductive healthcare services. The SAFER Health Act is just the most recent attempt to protect reproductive health in a post-Roe world. It follows the call of many Democrats who urged the Biden Administration to update HIPAA in the wake of Dobbs and the abortion bans across the country. In June 2022, just after the Dobbs decision, over thirty Democratic Senators signed on to a letter to President Biden urging “bold action” to protect the right to abortion. The following month Democrats introduced the Freedom to Travel for Health Care Act, which clarified the illegality of anti-choice states to limit travel for those seeking reproductive health care and empowered the U.S. Attorney General to bring civil action against violators.
Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, and the subsequent enactment of severe abortion bans across several states, risks surrounding use of a patient’s reproductive health information in adverse legal proceedings, which would endanger the patient and the patient-provider relationship, skyrocketed. Currently, almost half the U.S. states have implemented some ban on abortions, and 12 states have a near-total ban on the reproductive procedure. While the Health Insurance Portability and Accountability Act (HIPAA) provides protections for certain reproductive health information, the SAFER Health Act would further provider restrictions when it comes to disclosing personal health information related to reproductive healthcare, namely abortions.
While the Health Insurance Portability and Accountability Act (HIPAA) provides protections for certain reproductive health information, the SAFER Health Act would further provider restrictions when it comes to disclosing personal health information related to reproductive healthcare, namely abortions.
Under HIPPA, state laws can ban abortions, but if the law does not expressly require provider reports, any reports of the procedure from a healthcare provider is a violation. However, if court orders or summons are received, the equation changes; providers (abortion clinics, healthcare providers, and other HIPAA-entities) must provide reproductive health information without patient consent in situations involving court orders, summons, subpoenas, and warrants. This HIPPA loophole creates a scary reality by weaponizing the existing law and targeting “reproductive health information to prosecute extreme abortion bans.” The SAFER Health Act would eliminate this loophole.
The Act seeks to expand upon HIPAA and protect patients by ensuring doctors gain consent before sharing personal health information related to abortion or pregnancy loss. More specifically, the SAFER Health Act would “prohibit HIPAA-covered entities and their business associates from disclosing personal health information related to pregnancy termination or loss in proceedings without a valid authorization from the patient.” The Act would apply to proceedings at all levels and of all kinds, including civil, criminal, legislative, and administrative proceedings. Additionally, in order to enforce it, the Act seeks to direct the Department of Health and Human Services (HHS) to revise HIPAA and other related regulations and to conduct a “national campaign to educate covered entities and their business associates about the revisions.”
The SAFER Health Act would protect against reproductive health information collected by providers being used against patients, but it leaves a glaring gap regarding information collected by non-providers, like reproductive healthcare apps. Even though such popular apps are not covered by HIPAA, consumers can still have some semblance of protection from the Federal Trade Commission (FTC) and their health breach notification rule, which requires certain parties to be notified if there is any leak of identifying health information. If third parties are provided identifying data on a person’s termination of pregnancy, the FTC could consider such disclosure of personal health data as a breach. The issue with the FTC’s existing rule is the exception for law enforcement, which allows for notification of an alleged breach to be delayed if it would impede a criminal investigation.
Despite the fact that the SAFER Health Act does not include any indication on how privacy laws may be expanded past healthcare providers into the technology sphere of fertility or reproductive tracking apps, it’s enactment could get the ball rolling. The leap from protecting private information gathered from doctors or insurance companies to protection against disclosure from certain apps would close the gap currently permitted under HIPAA.
Brittany Huang graduated from the University of Kansas in 2021 with a major in Psychology and Economics. In law school, Brittany is currently the Vice President of Networking and Events for the UNC Sports and Entertainment Law Association and a staff member at the North Carolina Journal of Law and Technology.