In the Biden administration’s latest salvo against the Dobbs decision, on Monday HHS finalized HIPAA regulations that directly attack pro-life state laws and place innocent doctors in the crossfire.
I was the nation’s HIPAA regulator under President Trump, so I can speak with some authority on this matter. HIPAA regulations are painstakingly balanced protecting patient privacy across a multitude of weighty interests including research, public health, treatment efficacy, cost containment, and notably, law enforcement. For decades, HIPAA rightly got out of the way whenever courts validly authorized search warrants of medical records. But new Biden regulations have flipped this long-standing arrangement and doctors now risk incarceration if they comply with a valid warrant that seeks records related to “reproductive health care,” defined to include abortion, among other procedures.
While abortionists are cheering this unprecedented shield against civil and criminal investigation, normal health care providers are put in an impossible position.
Imagine you are a doctor in Idaho treating a patient suffering from severe uterine bleeding, a common side-effect of chemical abortion drugs. You learn your patient was otherwise in good health but an abusive boyfriend that impregnated her had ordered abortion drugs off the internet and given them to her at an extremely high dose “just to be sure.” Because the events occurred in a pro-life state, it means the boyfriend (though not the mother) has clearly violated state laws protecting unborn children from abortion. A week later you get served a duly authorized search warrant for medical records by the local sheriff investigating the illegal abortion. What do you do?
Well, according to the Biden rule, HIPAA prohibits doctors and hospitals from disclosing information about “lawful” abortions in response to any civil or criminal investigations inquiring about the legality of the abortions themselves. The regulation then adds that all abortions, no matter where performed, must be presumed lawful unless and until law enforcement can show that the abortions they are investigating are unlawful.
To make the shield for abortionists even more daunting, the regulation invents a new burden of proof rule that deems judge-authorized warrants (based on sworn law enforcement declarations) not a substantial enough basis in fact of illegality to allow disclosure. Indeed, the rule admits that law enforcement may have to divulge additional information that “would jeopardize an ongoing criminal investigation” to meet this burden or allow guilty parties to remain uninvestigated.
In short, law enforcement can no longer gather critical evidence of illegal abortions possessed by doctors until they provide critical evidence of illegal abortions to those same doctors, including abortionists who are the target of the investigation. Like a cruel child making a dog perpetually chase its tail, this rule not only impedes and frustrates law enforcement on abortion, it flaunts it. I suspect pro-life state governors and attorney generals will be lining up to sue.
Such overreach would never be tolerated in other contexts and abortion should get no special treatment. If the state police show up at someone’s home with a warrant to investigate a massive marijuana orchard growing in his backyard, must the cops first prove to the owner that the marijuana is not for personal medicinal use before executing the warrant? Or imagine the police secure a warrant related to digitized child pornography, can the suspected perp prevent access to his computer until the police provide proof to him that his pornographic pictures of pre-pubescent girls are actually under 18? Of course not.
But when it comes to abortion, the Biden admin says that not only can doctors refuse to comply with warrants, they ordinarily must refuse or “be subject to potential criminal liability.” As with the hypothetical Idaho doctor above, the new rules threaten doctors who are not abortionists themselves but merely clean up the messes caused by those who illegally perform or facilitate abortions.
Sadly, this scenario will not be hypothetical soon and many innocent doctors will have to ask themselves, would they rather risk state jail for defying a search warrant or risk the federal penitentiary for complying?
Roger Severino is the Director of the Office for Civil Rights at the U.S. Department of Health and Human Services and works in Washington, D.C.
