In 2018, Attorney General Marty Jackley convinced the United States Supreme Court to allow South Dakota to enforce its tax laws outside its borders. AG Jackley is now trying to win that same extra-territorial power for South Dakota’s abortion laws. Jackley and 17 other Republican AGs have signed on to a letter from Mississippi Attorney General Lynn Fitch to U.S. Secretary of Health and Human Services Xavier Becerra arguing that the Department’s proposed HIPAA Privacy Rule to Support Reproductive Health Care Privacy violates HIPAA and constitutional federalism, stops states from chasing down illegal abortion providers, and, as a bonus, advances “radical transgender-policy goals”.
In short, DHHS wants to protect information about lawfully obtained reproductive health care from release law enforcement. If a South Dakota woman wants to legally terminate her pregnancy and she travels to Minnesota or some other suitably respectful, non-misogynist state to obtain an abortion, the proposed rule prohibit the disclosure of records of that abortion to South Dakota law enforcement. DHHS contends that subjecting reproductive health care records in states that allow abortion to snooping from cops from states that don’t allow abortion will harm patient-provider trust, quality of care, and health outcomes:
Experience shows that medical mistrust—especially in vulnerable communities that have been negatively affected by historical and current health care disparities—can create damaging and chilling effects on individuals’ willingness to seek appropriate and lawful care for medical conditions that can worsen without treatment. If individuals believe that their PHI may be disclosed without their knowledge or consent to initiate criminal, civil, or administrative investigations or proceedings against them or others based primarily upon their receipt of lawful reproductive health care, they are likely to be less open, honest, or forthcoming about their symptoms and medical history. As a result, individuals may refrain from sharing critical information with their health care providers, regardless of whether they are seeking reproductive health care that is lawful under the circumstances in which it is provided. For instance, an individual who has obtained a lawful abortion in one state may fear receiving emergency care in a state where abortion is unlawful because providing information to a health care provider in such a state could place them into legal jeopardy, even if that information is relevant to the immediate health emergency. If an individual believes they cannot be honest about their health history, the health care provider cannot conduct an appropriate health assessment to reach a sound diagnosis and recommend the best course of action for that individual. Heightened confidentiality and privacy protections enable an individual to develop a trust-based relationship with their health care provider and to be open and honest with their health care provider. That health care provider is then more likely to provide a correct diagnosis and aid the individual in making informed treatment decisions.
Similarly, if a health care provider believes that an individual’s highly sensitive PHI is likely to be disclosed without the individual’s or the health care provider’s knowledge or consent in connection with a criminal, civil, or administrative investigation or proceeding against the individual, their health care provider, or others primarily because of the type of health care the individual received or sought, the health care provider is more likely to omit information about an individual’s medical history or condition, leave gaps, or include inaccuracies when preparing the individual’s medical records. And if an individual’s medical records lack complete information about the individual’s health history, a subsequent health care provider may not be able to conduct an appropriate health assessment to reach a sound diagnosis and recommend the best course of action for the individual. Alternatively, a health care provider may even withhold from an individual full and complete information about their treatment options because of liability fears stemming from concerns about the level of privacy afforded to PHI. Heightened confidentiality and privacy protections enable a health care provider to feel confident maintaining full and complete medical records. With complete medical records, an individual is more likely to receive appropriate ongoing or future health care, including correct diagnoses, and obtain appropriate guidance, empowering the individual in making informed treatment decisions. This further enables the individual to access lawful health care—and health care providers to practice medicine—in an environment that promotes social, environmental, mental, and physical wellness.
Furthermore, an individual’s lack of trust in their health care provider to maintain the confidentiality of the individual’s most sensitive medical information and a lack of trust in the medical system more generally may have significant repercussions for the public’s health more generally. Individuals who are not candid with their health care providers about their reproductive health care may also withhold information about other matters that have public health implications, such as sexually transmitted infections or vaccinations [DHHS, “HIPAA Privacy Rule to Support Reproductive Health Care Privacy,” Federal Register, 2023.04.17].
Jackley, Fitch, et al. disregard women’s health and contend they should be able to enforce their abortion bans across their borders. They justify this radical claim of extra-territorial authority by noting that abortion-banning states aren’t prosecuting pregnant women, only the people who help them get abortions. But those bills are coming, and women seeking to exercise their bodily autonomy are already subject to legal danger.
The ACLU warns women shouldn’t be fooled by Jackley and Fitch’s assurance:
There is a simple and chilling motivation behind this letter: keeping the door open for criminalizing people who seek abortions or gender-related care beyond state lines. People have a right to access abortion and gender-affirming care in states where it’s legal. We need clear legal protection to prevent hostile states from interfering with necessary health care nationwide [Samantha Chapman, ACLU-SD advocacy manager, press release, 2023.07.19].
Legally, Jackley and Fitch’s complaint should go nowhere. If a South Dakotan travels to another state and engages in legal activity there that is illegal in South Dakota, that’s none of South Dakota’s business. Jackley can’t investigate a Pierre neighbor for driving to Denver and smoking legal marijuana. Jackley can’t investigate a Sioux Falls resident for flying to Nevada to do legal business with a prostitute. For all their fluff, Jackley and Fitch and the other 17 GOP AGs can’t establish their right to play cop outside their states.
Jackley, Fitch, and friends only believe in federalism and states’ rights when it serves their purposes. The Alito Court’s subversion of women’s rights in favor states’ rights to ban abortion on their home turf isn’t enough for them; Jackley wants the authority to march into Minnesota and enforce South Dakota’s abortion ban.