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Biden administration abortion rule seeks to protect women crossing state lines


Abortion rights campaigners and anti-abortion demonstrators hold signs during the annual “March for Life” for the first time since the U.S. Supreme Court overturned Roe v Wade abortion decision, in Washington, U.S. January 20, 2023. REUTERS/Jonathan Ernst

The U.S. Department of Health and Human Services (HHS) on Wednesday will propose a new rule prohibiting healthcare providers and insurers from sharing private health information if that information will be used to investigate someone for accessing or providing reproductive care, including abortion.

The proposal is aimed at protecting woman who live in states where abortion is illegal who travel out of state to have the procedure done – something thousands of women are already doing, research shows.

It is unclear whether the proposed rule would actually stifle criminal investigations.

Major companies including JPMorgan Chase & Co (JPM.N), Inc (AMZN.O) and Walt Disney Co (DIS.N) have said they would pay travel costs for employees seeking abortions out of state and provide reimbursement through company-sponsored healthcare plans, but Republican leaders have threatened retribution.

The proposed rule, which is set to be finalized following a 60-day public comment period, strengthens existing privacy protections under the Health Insurance Portability and Accountability Act (HIPAA) which are binding in all states.

The rule specifically prohibits the “use or disclosure” of private health information by a “regulated entity” for these purposes, according to a fact sheet distributed by the White House, including:

“A criminal, civil, or administrative investigation into or proceeding against any person in connection with seeking, obtaining, providing, or facilitating reproductive health care, where such health care is lawful under the circumstances in which it is provided.

The identification of any person for the purpose of initiating such investigations or proceedings.”

Companies face legal battles ahead.

The federal Employee Retirement Income Security Act of 1974 (ERISA) covers most health insurance and other company benefit plans and generally preempts state laws on abortion-related coverage. But it does not prevent states from prosecuting plans, sponsors, administrators and their employees in all instances.

Vice President Kamala Harris will host the third meeting of the Task Force on Reproductive Healthcare Access, an interagency group that has taken on added meaning in the wake of a federal judge’s decision on Friday to suspend the Food and Drug Administration’s 23-year-old approval of a key abortion drug.

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