Arkansas AG signs on to letter opposing abortion exception to federal health privacy rule

Arkansas Attorney General Tim Griffin joined 18 of his peers last month in opposing a proposed federal rule that would prohibit the disclosure of personal health information in investigations involving reproductive health care.

The proposed rule from the U.S. Department of Health and Human Services expands existing privacy protections to bar sharing personal health information when someone from a state where abortion is outlawed obtains one where the procedure is legal. The rule would apply not only to the individual obtaining reproductive health care but to any person involved with such care.

The June 16 letter to HHS Secretary Xavier Becerra called on the department to drop the rule, saying it exceeds the agency’s legal authority and is unconstitutional. The letter also expresses concern that the broad definition of reproductive health care in the proposal will be used to stymie legitimate investigations, not only into abortion but also gender-affirming care, child abuse and other sex crimes.

The Mississippi Free Press on Friday was the first to report on the letter, which was dated the day public comment on the proposed privacy rule closed. The case that led to the U.S. Supreme Court’s overturning of a federal right to abortion, Dobbs v. Jackson Women’s Health Organization, began in Mississippi.

 Mississippi Attorney General Lynn Fitch wrote the letter on behalf of fellow Republican attorneys general from Arkansas, Alabama, Alaska, Georgia, Idaho, Indiana, Kentucky, Louisiana, Missouri, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, Texas and Utah. 

Most of those states have strict bans on abortion and many have passed laws banning gender-affirming care for minors. Some have sought to criminalize the actions of medical professionals and others involved in reproductive care.

The rule would curtail the ability of state officials to obtain evidence of potential violations of state law, the letter says.

“The current law already allows for prosecutors to subpoena medical records, and subpoena power is critical to criminal prosecutions,” Griffin said in a statement provided Wednesday by spokesman Jeff LeMaster. “That is the current status quo and has been that way for years.

“The Biden Administration wants to change the law. The letter opposed that because of the consequences of such changes on some criminal cases, particularly those involving the medical records of a defendant in a sexual assault case, for example,” Griffin added.

Louisiana Attorney General Jeff Landry told the Louisiana Illuminator in a statement that the “Louisiana Department of Justice is opposed to this radical proposal which would block information necessary to investigate the sexual abuse of children.”

Fitch’s letter to HHS accuses the Biden administration of pushing “a false narrative that States are seeking to treat pregnant women as criminals or punish medical personnel who provide lifesaving care.” 

In an emailed statement Tuesday to the Nebraska Examiner, Attorney General Mike Hilgers’ office said 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.

Also on Tuesday, 50 congressional Democrats and independents sent a letter to HHS urging the department to tighten privacy restrictions around personal health information even further.