Mississippi Attorney General Lynn Fitch speaks at the Neshoba County Fair, July 28, 2022. Fitch led a group of 19 GOP state attorneys general in opposing a proposed federal rule that will prevent investigators from accessing private health information of people from states that outlaw abortions who seek the procedure in states where it is legal. (Vicki D. King/Mississippi Today)
EDITOR’S NOTE: This commentary has been updated to specifically note that Arkansas law prohibits the prosecution of a person who obtains an abortion.
A cadre of Republican state attorneys general, including Arkansas’ Tim Griffin, say they’re acting in good faith in opposing a proposed federal rule that would prevent them from accessing information about their states’ residents who seek abortions or transgender care in other states.
You would think those top state law enforcement officials are too busy defending laws that have been challenged in court. This year alone, Griffin has been busy defending Arkansas in at least three cases affecting LGBTQ+ and free speech rights.
But these GOP attorneys general mustn’t really have a whole lot to keep them busy. Why else do they spend so much energy getting into everybody’s personal business?
In the past few months they’ve sent scolding letters objecting to Biden administration policies, criticizing Target for recognizing Pride Month and threatening legal action against large companies, including Arkansas-based WalMart, over their diversity, equity and inclusion policies.
I know, the simple answer is they’re just trying to make sure that laws get enforced. Never mind that many of those laws are invasive and unjust efforts to control private behavior.
Take, for example, the letter Griffin and 18 of his peers sent in June to U.S. Secretary of Health and Human Services Xavier Becerra decrying his agency’s proposal to protect from prying investigators the private, protected health information of folks who travel out of their home states for abortions or gender-affirming care because it’s against state law to get that health care where they live.
The proposed HHS rule would, in its words, “bolster patient-provider confidentiality around reproductive health care.” It would prohibit disclosure of protected health information (PHI) from criminal, civil or administrative investigations into or against anyone in connection with seeking, obtaining, providing or facilitating reproductive health care.
The proposed rule contains other details, such as the definition of “person,” “public health” and “reproductive health.” Important note: “Person” is defined partly as “a natural person (meaning a human being who is born alive). [Emphasis from the AGs’ letter.]
It should come as no surprise that this proposal, its details, and the Biden administration’s overall stance on reproductive health, prompted a 17-page lawyerly conniption on the part of the attorneys general, most of whose states ban abortion and many of which ban medical care for transgender youth.
The AGs say the administration “has pushed a false narrative that States are seeking to treat pregnant women as criminals or punish medical personnel who provide 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,” referring to the 2022 U.S. Supreme Court decision that overturned the 50-year-old constitutional right to abortion.
The letter to HHS argues that the proposed privacy rule change exceeds the department’s statutory authority and is unconstitutional. Mississippi Attorney General Lynn Fitch, who wrote the letter, indicated that legal action is possible, arguing that the rule would “threaten States’ ability to exercise their longstanding medical oversight authority.”
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In statements made to the media, Griffin and at least two other attorneys general said their objections to the proposed rule stem from concerns about its effects on criminal investigations other than violations of state bans on abortion or gender-affirming care.
The letter opposes the rule change “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 told the Advocate.
“The current law already allows for prosecutors to subpoena medical records, and subpoena power is critical to criminal prosecutions,” he said. “That is the current status quo and has been that way for years.”
“Nothing in the proposed rule justifies upending settled law and creating a carve-out for abortion,” Hilgers said.
The settled law the attorneys general refer to is the Health Insurance Portability and Accountability Act of 1996, commonly known as HIPAA. It’s the law that requires your medical providers to ask permission to share your medical information with other doctors, insurance companies, government agencies, law enforcement – even your own spouse or family member. HIPAA’s privacy provision is a serious matter.
It’s understandable then that attorneys general are seriously concerned about losing access to information that can help them uncover possible violations of state law.
Like a lot of people who saw headlines about this letter earlier this week, I reacted reflexively. Sure, I thought, the law enforcement arm of the state wants to go after pregnant people and transgender kids and their doctors to satisfy some Christian bloodlust against those who dare think or believe differently.
After reading the letter, I can see the logic behind it even if I don’t agree with the philosophy or religious beliefs supporting it. The attorneys general do have a legitimate concern that the proposed rule change would “curtail the ability of state officials to obtain evidence of potential violations of state laws,” not just those concerning abortion or transgender care. Their argument that HIPAA doesn’t “shield information that is evidence of legal wrongdoing under state law” makes sense. And their statement that the proposed rule change would “undermine legitimate state investigations into possible wrongdoing” such as child abuse is logical.
The letter goes on to note that some state laws expressly exclude pregnant women from liability when abortion is against the law. Arkansas state law, ACA 5-61-304(c)(1), bans prosecution of a person who obtains an abortion.
The letter also argues that HHS’ concern that states will seek “disclosure of an individual’s PHI as a pretext” to undermine lawful care “violates the ‘presumption of good faith’ accorded to ‘government actors in their sovereign capacity and in the exercise of their official duties.’”
And therein lies the rub. In Arkansas, legislation that would have allowed a person who obtains an abortion to be charged with homicide was introduced this spring but died in a House committee at the end of the session. The threat is out there.
The emotional tensions around abortion and transgender care have created a level of fear among pregnant and transgender people and their allies that has weakened “good faith” when it comes to public officials and law enforcement, especially Republican officials.
In April, Vice President Kamala Harris said “the women of America … have been in a state of fear” since the Dobbs ruling. “We are looking at a situation in our country where healthcare providers — most of whom have had a calling to do the good and important work of taking care of other people — are in fear of losing their licenses and, worse, even being prosecuted and criminalized for the work that they do that is about providing healthcare for people in our country,” she added.
The question then for Griffin and the other attorneys general is whether we can trust them to act in good faith if HHS maintains the status quo and they retain the right to access private health information in the pursuit of possible criminal violations of state laws.
I remain uncertain.
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