Attorney General Bonta Co-Leads Coalition of 24 States in Support of Stronger Federal Protections for Reproductive Health Data Privacy

OAKLAND — California Attorney General Rob Bonta and New York Attorney General Letitia James today led a coalition of 24 states in a comment letter supporting stronger protections for patients’ reproductive health information. The Biden Administration is considering adding amendments to the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, the federal law that governs the disclosure of protected health information (PHI). If implemented, the changes would make it illegal to share a patient’s PHI if the PHI is being sought for certain criminal, civil, and administrative investigations and proceedings against a patient in connection with a legal abortion or other reproductive care. This is especially important as the U.S. Supreme Court decision overturning Roe v. Wade spurred many anti-abortion states to enforce draconian restrictions that could lead to criminal or civil penalties for anyone seeking, providing, or assisting with reproductive care. The coalition of attorneys general today issued a letter, welcoming the federal government’s proposed HIPAA amendments and adding that the additional guardrails would help safeguard reproductive health data from being wrongfully accessed and exploited to harm pregnant people or healthcare providers.

“In this new post-Roe world, those seeking reproductive care need better protections against wrongful prosecution,” said Attorney General Bonta. “California has already passed strong laws that help to protect the reproductive health privacy of anyone traveling or residing here — now the proposed HIPAA changes would provide these crucial protections do the same for the entire nation. This is a much-needed and welcome move, and I applaud the Biden Administration for standing up for reproductive rights. Patients seeking abortions don’t deserve cruel threats and criminal charges, they deserve compassion and care — and in California we will continue fighting to secure it for them.”

The Dobbs v. Jackson Women’s Health Organization decision overturned Roe v. Wade in June 2022, and created a climate of uncertainty and fear among reproductive health care seekers and providers throughout the country. Fifteen states currently have laws in effect prohibiting abortion under all or most circumstances. Everyone involved in assisting, providing, and obtaining such care in those states may be at risk of investigation, civil liability, and criminal prosecution. 

In the letter today, the coalition of attorneys general welcomed the proposed HIPAA amendments, which aim to protect against such misuse and weaponization of people’s data. The amendments would prohibit the use or disclosure of PHI for an investigation into a patient in connection with seeking, obtaining, providing, or facilitating reproductive healthcare if:

• The patient seeking reproductive healthcare is in a state where such care is lawful; or
• The patient is seeking reproductive healthcare that is protected under federal law (for example, by the Emergency Medical Treatment & Labor Act), regardless of the state.

The coalition argues that these provisions are essential to begin creating a more unified privacy landscape for access to reproductive care, and urged the Biden Administration to adopt the provisions speedily. The attorneys general also called for the creation of a nationally available, online platform that provides accurate and clear information on reproductive care and privacy rights, and a public awareness campaign to promote the website.

In filing today’s letter, Attorneys General Bonta and James were joined by the attorneys general of Arizona, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington, Wisconsin, and Washington D.C.

Following the U.S. Supreme Court decision overturning Roe v. Wade, California has passed or implemented the following actions to protect the reproductive health privacy of its residents:

• Assembly Bill 2091, which protects abortion records in California from access by out-of-state law enforcement agencies and other third parties;
• Assembly Bill 1242, sponsored by Attorney General Bonta, which ensures that law enforcement and the tech industry do not cooperate with other states’ efforts to criminalize abortion care;
• Assembly Bill 2223, which bolsters the state’s Reproductive Privacy Act, ensuring that no one in California will be investigated, prosecuted, or incarcerated for ending their pregnancy or experiencing pregnancy loss; 
• Assembly Bill 1666, which bars enforcement of out-of-state civil anti-abortion actions against anyone who receives or seeks, performs or induces, or aids someone in obtaining an abortion; and
• Executive Order N-12-22, which prohibits California state agencies and departments from cooperating with out-of-state agencies to extradite anyone seeking, providing, or assisting with access to reproductive health care services, including abortion, in California. The Executive Order also prohibits state agencies from sharing information in connection with proceedings by out-of-state actors to prosecute individuals for the provision of reproductive healthcare services.

A copy of today’s comment letter to the Biden Administration can be found here.