Following the publication of the U.S. Supreme Court opinion in Dobbs v. Jackson Women’s Health Organization, on June 29, 2022, the U.S. Department of Health and Human Services’ Office for Civil Rights (HHS) issued guidance regarding disclosures of protected health information (PHI) concerning reproductive health procedures such as abortion. The Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule governs the disclosure of PHI by most health care providers, as well as employer-sponsored health plans, (Covered Entities), generally restricting the use or disclosure of PHI without the individual’s authorization other than in specifically excepted circumstances. Specifically, HIPAA does permit Covered Entities to disclose PHI without a patient’s authorization (or in some instances, notice and an opportunity to object), including 1) Disclosures required by law; 2) Disclosures for law enforcement purposes; and 3) Disclosures to avert a serious threat to health or safety. In the guidance, HHS notes that under each of these exceptions, HIPAA permits but does not require disclosure of PHI by a Covered Entity. HHS further reasserts that any disclosure made pursuant to one of the above permitted disclosures must be limited to the minimum PHI necessary to respond to the permitted disclosure request.

Whether a circumstance, law, or crisis stands sufficient to permit the disclosure of PHI often involves a complex legal and fact-specific analysis. Covered Entities and their business associates with concerns about potential obligations to disclose information concerning reproductive health care should seek legal counsel for advice and assistance.

Following the publication of the HHS guidance, on July 8, 2022, President Biden issued an Executive Order announcing actions by the Federal Government to protect health care service delivery and to promote access to reproductive health care services, including abortion. In the Executive Order, the President called upon HHS to submit a report to the President 1) providing recommendations on access to reproductive health care, including family planning, emergency contraception, and all methods of abortion care (including medication abortion), 2) identifying ways to increase outreach and education about access to reproductive health care services, and 3) identifying steps to ensure that the protections for “emergency medical care” under existing federal law (i.e., under the Emergency Medical Treatment and Labor Act) extend to pregnant women and those experiencing pregnancy loss, including miscarriages and ectopic pregnancies. The President’s order requires HHS to submit its report within 30 days of the Executive Order’s issuance. The Executive Order further asks the United States Attorney General and the Secretary of Homeland Security to consider actions to ensure the safety of patients, providers, and third parties involved in the provision or receipt of reproductive and related health care services, and it asks the Secretary of HHS and the Chair of the Federal Trade Commission to consider actions to protect patient privacy surrounding reproductive health care services.

Taft will continue to provide regular updates regarding legal developments following Dobbs that impact clients. If you have questions about these developments, please contact the authors or Taft’s Post-Roe v. Wade Task Force.