Republican and Democrat-Led States Diverge on Abortion Data Collection After Dobbs Ruling

In the wake of the Supreme Court's landmark decision in Dobbs v. Jackson Women's Health Organization, which overturned the federal right to abortion in June 2022, Republican and Democrat-controlled state legislatures are taking divergent approaches to abortion data collection requirements. The Dobbs ruling has led to a patchwork of state-level abortion restrictions and bans, disproportionately impacting people of color, especially Black and American Indian/Alaska Native women, who are more likely to reside in states with such measures.

Prior to the Dobbs decision, data on abortions by race and ethnicity were already limited, but the available information indicated that the abortion rate was higher among Black and Hispanic women compared to White women. Factors contributing to these disparities include limited access to healthcare and contraception, a history of racist practices in the healthcare system, and broader social and economic inequities. The issue of abortion access has become a key concern for many voters, particularly Black women, in the lead-up to the 2024 presidential election.

In response to the changing legal landscape, the U.S. Department of Health and Human Services (HHS) has issued a new rule modifying the Health Insurance Portability and Accountability Act (HIPAA) to strengthen protections for sensitive information related to reproductive healthcare, including abortions, in-vitro fertilization, and contraception. The rule, set to take effect in June 2023, prohibits healthcare providers, insurers, and other organizations from disclosing patients' protected health information (PHI) to state officials and law enforcement investigating patients and providers, depending on the situation.

The new HIPAA Privacy Rule seeks to safeguard both providers in states where abortion is banned and patients crossing state lines to access reproductive healthcare. It requires providers and healthcare organizations to agree in writing that these medical files will not be used for criminal investigations or other law enforcement purposes. The Biden-Harris administration emphasizes that this rule is one step in an effort to protect women's reproductive rights, acknowledging that it will not completely undo the effects of the Dobbs decision.

Why this matters: The divergent approaches to abortion data collection by Republican and Democrat-led states highlight the ongoing political divide over reproductive rights in the United States. The new HIPAA Privacy Rule represents a significant effort by the federal government to protect sensitive reproductive health information amid a rapidly changing legal landscape, with far-reaching implications for patients, providers, and the 2024 presidential election.

The Electronic Privacy Information Center (EPIC) has expressed support for the new rule but continues to advocate for two further amendments to the HIPAA Privacy Rule. EPIC argues that the rule should protect reproductive healthcare provided in every state, including those that have banned or limited access to abortion and other reproductive health services. Additionally, EPIC calls for HHS to adopt a warrant requirement for law enforcement access to personal health information, further strengthening privacy protections for individuals seeking reproductive healthcare.

Key Takeaways

• Dobbs ruling led to divergent state policies on abortion data collection.
• New HIPAA rule protects sensitive reproductive health info from disclosure.
• Abortion access is a key concern for voters, especially Black women.
• Rule prohibits providers from disclosing patient info for law enforcement.
• EPIC advocates for further amendments to strengthen privacy protections.