Conflicting abortion laws are making women’s reproductive care a quagmire

Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health last month, women’s reproductive care is a certifiable legal mess. 

With clashing state and federal laws, doctors are worried they might get sued over life-saving care, even in states where abortion is still legal. Patients aren’t sure if they’ll be criminally charged for having an abortion, or what medical information is private anymore. And only the federal government has any chance of cleaning up the worst of the confusion.  

The Biden administration recently issued two important sets of guidelines seeking to clarify requirements for abortion care under a federal emergency care law and the federal medical privacy law commonly known as HIPAA.   

Though the directives were well-intentioned, the resulting conflicts between state and federal law have mired professionals who provide any type of reproductive care in a legal, ethical and practical morass. And the privacy protections turn out not to protect a patient’s privacy in a wide variety of troubling circumstances.   

Earlier this month, Texas sued the federal government, claiming the emergency guidance imposes a federal “abortion mandate” that unlawfully usurps the state’s right to enforce its own laws. The Texas suit highlights the unsettled interplay of state and federal law on abortion rights.  

The new guidance requires a hospital to perform an abortion in the case of an emergency medical condition, explicitly including situations involving an ectopic pregnancy or complications from pregnancy loss, such as a miscarriage. In effect, physicians in many states will face situations in which federal law requires providing an abortion but the abortion is arguably banned under state law or would at least leave the physician liable to a civil suit.  

Take, for example, a woman in Texas who goes to the emergency room with an ectopic pregnancy that has not yet ruptured. If the physician believes the best treatment is an abortion, federal guidance dictates that the procedure be performed. Yet Texas’ abortion law triggered by Dobbs only permits abortion when a medical condition puts the patient “in danger of death or a serious risk of substantial impairment of a major bodily function.”   

Because ectopic pregnancies sometimes resolve themselves without treatment, a physician might decide that the patient was not at serious-enough risk to permit abortion under Texas law. If the ectopic pregnancy involved a beating fetal heart, another Texas law would allow any private citizen to sue the doctor, even if the doctor acted to save the mother’s life. In this way, state law could shut down the abortion access mandated by federal law.  

In the case of federal privacy laws, virtually all hospitals and clinics are prohibited from disclosing “protected health information,” such as a diagnosis or test results, and the laws impose civil and criminal penalties for violations. But the protection is riddled with holes.  

While the administration’s HIPAA guidance seeks to preserve broad confidentiality for patients’ abortion records, there is a giant loophole: Existing federal regulations allow for disclosures that are “required by law.” So, if state law requires that health care providers disclose medical records of women who have miscarried or who have been prescribed medication that can induce an abortion, the state can most likely obtain that information.   

Most states already require facilities to report abortions, typically to the state’s public health agency. Even if they don’t include names, the reports often contain demographic data that might result in identifying the patient. Still more disturbing, the HIPAA exceptions could allow a prosecutor in a state that bans abortion to subpoena records of its residents from an abortion provider in a state where abortion is legal.  

HIPAA also allows disclosure to the police. For example, if a woman comes to a hospital experiencing a miscarriage in a state where fetuses can be considered crime victims, a hospital employee could report a suspected self-managed abortion under the crime victim exception. Similarly, the exception for preventing child abuse could allow hospital staff to inform law enforcement if a woman says she will seek an abortion, even if she intends to travel to a state in which the procedure is legal.  

This confusion and risk leaves health care providers and their patients in an insoluble quagmire.

The Biden administration must do more to solve this confusion. It should clarify that providers who follow federal emergency guidance can neither be prosecuted nor sued under state law and that the administration will use its full resources to protect providers. 

 And it should strengthen federal medical privacy requirements by issuing new regulations that guard against disclosure unless there is both a court order and a health care-related reason justifying the disclosure. In a post-Dobbs world, both these actions are critical to ensure that health care providers can do what they are trained to do — provide essential care to their patients.

Wendy Bach is a professor of Law at the University of Tennessee Knoxville College of Law. Naomi Cahn is a professor of law at the University of Virginia School of Law and co-director of UVA Law’s Family Law Center. Maxine Eichner is the Graham Kenan Distinguished Professor of Law at the University of North Carolina School of Law.