By Amy Yurkanin
Alabama Attorney General Steve Marshall signed a letter that said states need to have access to medical information for people who travel out of state for abortions or gender-affirming health care.
Mississippi Attorney General Lynn Fitch wrote the letter last month to oppose proposed federal rules that would shield that information under the Health Insurance Portability and Accountability Act (HIPAA). Marshall was one of 19 attorneys general who signed.
After the U.S. Supreme Court decision in Dobbs vs. Jackson Women’s Health Organization last year, Alabama outlawed abortion. Women seeking to terminate pregnancies must travel out-of-state to get access to legal abortion services. The new federal rules would prevent that information from being disclosed to Alabama investigators.
In April, the White House announced the plan to protect reproductive health information.
“The rule would prevent an individual’s information from being disclosed to investigate, sue, or prosecute an individual, a health care provider, or a loved one simply because that person sought, obtained, provided, or facilitated legal reproductive health care, including abortion,” according to a fact sheet issued by the administration of President Joe Biden.
Mississippi Today first reported on the letter on July 13. In the letter opposing the new rules, the prosecutors said the rules could make it difficult to investigate doctors and clinics.
“The proposed rule would thus curtail the ability of state officials to obtain evidence of potential violations of state laws—even when requested under ‘a court order or other type of legal process,’” the letter said.
Abortion providers could use the rule to avoid detection, they said.
“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. State officials would clearly have a basis to investigate that provider for ‘a potential violation of law,’” according to the letter.
Under HIPAA, law enforcement and state regulators can access health information during investigations. In Alabama, hospitals frequently provide information to investigators in cases where women have been accused of drug use during pregnancy.
Alabama’s abortion law bans termination at all stages of pregnancy and does not include exemptions for rape or incest. The law targets doctors, who face between 10 and 99 years in prison if convicted. Women who receive abortions cannot be prosecuted.
Earlier this year, Marshall speculated that women who use abortion pills could be subject to prosecution under the same law that targets illegal drug use during pregnancy. He walked back those statements a few days later. After he reversed course, Marshall said Alabama authorities would only target doctors and other medical providers.
In the letter, Fitch wrote that states have valid reasons for wanting to maintain legal access to information about reproductive health care. She said the Biden administration has falsely accused anti-abortion states of going after women who seek abortions.
“The Administration, however, has pushed a false narrative that States are seeking to treat pregnant women as criminals or punish medical personnel who provide lifesaving care,” the letter said. “Based on this lie, the Administration has sought to wrest control over abortion back from the people in defiance of the Constitution and Dobbs. The proposed rule here continues that effort.”
The letter also said the new rules should not block access to information about gender-affirming health care for minors. Alabama passed a law banning those treatments, but parts of it have been blocked by courts.
“The proposed rule focuses on abortion,” the letter said. “But its broad definition of reproductive health care includes ‘health care related to reproductive organs, regardless of whether the health care is related to an individual’s pregnancy or whether the individual is of reproductive age.’ Given its far-reaching and radical approach to transgender issues, the Administration may intend to use the proposed rule to obstruct state laws concerning experimental gender-transition procedures for minors (such as puberty blockers, hormone therapy, and surgical interventions).”
