Cameron, other GOP AGs challenge Biden rule that would block access to medical records of women leaving state for abortions

Attorney General Daniel Cameron

By Melissa Patrick
Kentucky Health News

Attorney General Daniel Cameron joined fellow Republican attorneys general in opposing a proposed federal privacy rule to shield the medical records of patients who get reproductive health care services, such as abortions, in other states.

The June 16 letter that Cameron co-signed with 18 other attorneys general to the U.S. Department of Health and Human Services argues that the agency's proposed rule would upset the framework that safeguards the privacy of individual health information while permitting disclosure of information to state authorities to protect public health, safety and welfare. 

Under the proposed rule states that have banned abortions would not be able to collect personal health information about these services from other states for investigations, lawsuits or criminal charges. This would “unlawfully interfere with states’ authority to enforce their laws and does not serve any legitimate need," says the letter.

Kentucky has no law forbidding women from going to other states to get abortions.

The proposed privacy rule would prevent states from obtaining private medical information “for a criminal, civil, or administrative investigation into or proceeding against any person in connection with seeking, obtaining, providing, or facilitating reproductive health care … outside of the state where the investigation or proceeding is authorized” and “is lawful in the state where it is provided.”

HHS defines "reproductive health care" broadly in the proposed rule and says it is inclusive of all types of health care related to an individual's reproductive system. These would include, but not be limited to, pregnancy, contraception, fertility, prenatal care, miscarriage management and abortion.  

The AGs' letter says that while the broad definition of reproductive heath care includes “health care related to reproductive organs, regardless of whether the health care is related to an individual’s pregnancy or whether the individual is of reproductive age.” 

This, they argue, may allow the Biden administration "to advance radical transgender-policy goals" and "obstruct state laws concerning experimental gender-transition procedures for minors (such as puberty blockers, hormone therapy, and surgical interventions).”

Cameron said in a news release that the federal health-privacy law, the Health Insurance Portability and Accountability Act, or HIPAA, balances privacy and public-interest concerns by allowing disclosure of certain information to law enforcement. Cameron says the proposed rule would interfere with this.

Cameron writes, "HHS’s proposed rule exceeds the department’s legal authority. HIPAA authorizes HHS to set standards for protecting privacy in 'health information.' But HIPAA does not empower HHS to shield from authorities evidence of legal wrongdoing based on a claimed connection to 'reproductive health care.' The administration’s claims to the contrary could incentivize health-care providers to break state laws on everything from protecting unborn life to gender-altering surgeries."

The AGs' letter says the proposed rule would "curtail the ability of state officials to obtain evidence of potential violations of state laws." 

Kentucky has two laws that largely ban abortion in the state. One bans abortion except to save the mother's life and another bans abortions after six weeks of pregnancy, when many women are still not aware that they are pregnant. These laws have forced women who want or need an abortion to do so in states where it is still legal. 

This year, the General Assembly passed a law to ban gender-affirming medical care for transgender youth, which took effect last week when an injunction to block it was stayed, pending a future court ruling. This also creates a situation where families will likely seek care out of state.  

The same day Cameron and other Republican AGs sent their letter, all 23 Democratic state attorneys general submitted a letter supporting the rule, with suggestions for how to make it stronger. "Given this rapidly changing backdrop of extreme legal risks and increasing uncertainty, it is critical that additional guardrails be added to the privacy rule to protect against the disclosure of reproductive health information,” they wrote.

In a pepared statement, Angela Cooper of the American Civil Liberties Union of Kentucky called the attorney general's opposition to the proposed rule “another in a long line of actions indicating Daniel Cameron's unwillingness to stay out of Kentuckians’ private medical decisions. . . . The government has no place inserting themselves between families and their doctors, whether the issue is reproductive care or medically necessary care for transgender youth."

The letter in opposition of the proposed rule was led by Mississippi Attorney General Lynn Fitch and includes attorneys general from Mississippi, Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas, and Utah.