Document Type
Article
Publication Date
2024
Publication Title
Boston College Law Review
Abstract
As the number of abortion-restricting laws continues to grow in the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, law enforcement officers are increasingly interested in obtaining and using reproductive health information for law enforcement purposes. Although physicians and other covered entities generally are required to keep protected health information (PHI) confidential under the Health Insurance Portability and Accountability Act Privacy Rule, a number of regulatory exceptions historically have permitted covered entities to disclose PHI for civil, criminal, and administrative investigations and proceedings. On April 26, 2024, the Department of Health and Human Services promulgated a final rule amending certain of these exceptions. In particular, the final rule prohibits covered entities from using and disclosing PHI to conduct criminal, civil, and administrative investigations into any person for the mere act of seeking, obtaining, providing, or facilitating re- productive health care that is lawful under the circumstances in which it is provided. The final rule also prohibits covered entities from using and disclosing PHI to impose criminal, civil, and administrative liability on any person, or to identify any person, for the same purposes. Covered entities must comply with these new prohibitions by December 23, 2024. Using five hypotheticals as a platform, this Article carefully analyzes the final rule in terms of protecting the confidentiality of reproductive health information, supporting shared physician-patient decision making, and burdening vulnerable populations. Finding that the final rule continues to undermine the physician- patient relationship, discourage individuals from seeking health care from licensed health care providers, and burden racial and ethnic minorities, individuals with disabilities, individuals of low socioeconomic status, and other marginalized individuals in certain situations, this Article proposes additional amendments to the final rule that will better balance health information confidentiality and law enforcement activities in the context of reproductive health.
Volume
65
First Page
1921
Rights
Recommended Citation
Stacey A. Tovino, Aborted Confidentiality, 65 B.C. L. Rev. 1921 (2024).