WASHINGTON — The medical records of women will be shielded from criminal investigations if they cross state lines to seek an abortion where it is legal, under a new rule that the Biden administration finalized Monday.
The regulation, which is intended to protect women who live in states where abortion is illegal from prosecution, is almost certain to face legal challenges from anti-abortion advocates and criticism from abortion-rights advocates that it does not go far enough.
“No one should have their medical records used against them, their doctor or their loved one just because they sought or received lawful reproductive health care,” Jennifer Klein, the director of the White House Gender Policy Council, told reporters on Monday.
The new regulation is an update to the Health Insurance Portability and Accountability Act of 1996, which prohibits medical providers and health insurers from divulging medical information about patients. Typically, however, law enforcement can access those records for investigations.
In states with strict abortion rules, the federal regulation would essentially prohibit state or local officials from gathering medical records related to reproductive health care for a civil, criminal or administrative investigation in a state where abortion remains legal.
In theory, it will provide the most cover to women who leave states with strict bans to seek an abortion from a medical provider in a state that allows it.
“As someone who does see patients who travel from all across the country at our health center in D.C., it’s a reality. I’ve had patients ask … are there going to be consequences for me when I go home?” said Dr. Serina Floyd, an OB-GYN who provides abortions in Washington.
The new regulation would not protect a woman who orders an abortion pill from her home in a state like Mississippi, where abortion is mostly banned, from a provider in Illinois, where it is legal.
The nation’s top health official acknowledged Monday that the regulation has limitations — and may be challenged legally.
“Until we have a national law that reinstitutes Roe v. Wade, we’re going to have issues,” Xavier Becerra said. “But that doesn’t stop us from doing everything we can to protect every Americans’ right to access the care they need.”