Nebraska AG pushes against expansion of federal reproductive health privacy

In a letter dated June 16, the group, led by Mississippi Attorney General Lynn Fitch, urged Xavier Becerra, secretary of the U.S. Department of Health and Human Services, to drop a proposed modification of HIPAA’s Privacy Rule.

The change would prohibit the use and disclosure of protected health information — including reproductive health — “for a criminal, civil or administrative investigation or proceedings” against those who lawfully provided care, such as across state lines.

The attorneys general wrote that the Biden administration has pushed a “false narrative” that states are treating pregnant women as “criminals” or punishing medical personnel for providing lifesaving care.

“Based on this lie, the Administration has sought to wrest control over abortion back from the people in defiance of the Constitution and Dobbs,” the letter reads, citing the 2022 U.S. Supreme Court case originating from Mississippi that overturned constitutional protections for abortion.

The attorneys general of Alabama, Alaska, Arkansas, Georgia, Idaho, Indiana, Kentucky, Louisiana, Missouri, Montana, North Dakota, Ohio, South Carolina, South Dakota, Tennessee and Utah also joined the letter, as did Texas’ provisional attorney general.

The Mississippi free press on Friday was the first to report on the letter.

Health care privacy

The Nebraska Attorney General’s Office emailed a statement Tuesday saying the comment letter “protects the status quo” and the balance of power between federal and state governments.

“Nothing in the proposed rule justifies upending settled law and creating a carve-out for abortion,” the statement reads.

Scout Richters, senior legal and policy counsel for the ACLU of Nebraska, said there is a “simple and chilling motivation behind this letter: keeping the door open for criminalizing people who seek abortions or gender-related care beyond state lines.”

“Whatever Attorney General Hilgers and this letter’s cosigners might say, it is not the government’s job to interfere with or investigate these personal and private matters,” Richters said in a statement. “These additional protections are desperately needed.”

The ACLU submitted a June 16 letter — the deadline for comments on the proposed rule — in favor of the proposed change, stating the current rule doesn’t offer “sufficient protections.”

“Undermining privacy protections in health care leads to a breakdown in trust between providers and patients, and to adverse health outcomes,” the letter reads.

The ACLU in its letter encouraged the DHHS to interpret the proposal’s protections broadly, allow it to go into effect quickly and take steps to ensure protections are widely implemented. It also suggested explicitly limiting the definition of “public health” to exclude investigations relating to the access of lawful care.

Broadening rule to transition care

While the proposed rule is focused on abortion and reproductive care, the attorneys general point to an expanded definition of reproductive care accompanying the proposed rule — “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.”

The attorneys general said the definition is “buried” in the Health Department’s gloss of the proposed rule “without explanation or analysis.”

“Given its far-reaching and radical approach to transgender issues, the Administration may intend to use the proposed rule to obstruct state laws concerning experimental gender-transition procedures for minors (such as puberty blockers, hormone therapies and surgical interventions),” the attorneys general write.

A federal judge in Arkansas struck down a ban on gender-affirming care for youths last month, writing that the care is not experimental.

Nebraska Legislative Bill 574, which restricted gender-affirming care for minors and banned most abortions after 12 weeks gestational age, is being challenged in Lancaster County District Court for allegedly violating the state’s single subject rule.

The ACLU’s comment letter on the proposed change explains that criminal bans on gender care for transgender youths “[chill] individuals’ willingness to access necessary care, even where legal, out of fear that doing so may expose them to potential criminal liability.”

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