This spring, HHS finalized new regulations under HIPAA to limit law enforcement access to medical records tied to reproductive health. The rule was first proposed in the aftermath of the Dobbs decision as a way to limit the ability of state and local law enforcement agencies to access medical records to stymie or criminalize access to legal reproductive health services, most specifically abortions, but not only abortions. It also applies to contraception and the full range of other endangered reproductive care.
So for instance, consider the ability of a woman from an abortion-ban state to travel to another state to get a legal abortion, or her ability to receive legal abortion drugs through the mail. The news has been filled with proposed or actual laws which would attempt to restrict travel to receive abortions in other states, charge those who travel or criminalize those who might facilitate such travel or facilitate the legal shipment of prescribed abortion drugs through the mail. Of course, local police agencies might simply take it upon themselves to pull records to see who had unexplained disruptions to their menstrual cycles.
Your local sheriff might just want to know.
And so does JD Vance, it turns out.
But to enforce these laws or know when there’s something to enforce you really need access to medical records. You need to know and be able to prove when a woman was pregnant and then, before the end of normal gestation, stopped being pregnant. So if you live in Texas and you’re pregnant, can you go to your OB-GYN or will that be held against you if you’re found to have ceased being pregnant after a visit to Kansas? Does your OB have to report you to law enforcement if they believe there’s a real and present risk that you’ll go out of state to get an abortion or seek a prescription from an out of state doctor for mifepristone? And what about contraception, which some states are now also making moves to limit? Or how about IVF? This was the context of the HHS rule which was proposed in spring of 2023 and came into effect this spring. It applies to all of those questions.
Now when this rule was first proposed back in 2023, a group of 28 members of Congress wrote to HHS Secretary Xavier Becerra demanding he withdraw the proposed rule “immediately.” (I was reminded of this letter when I saw this write up this morning.) They argued that the proposed rule “unlawfully thwarts the enforcement of compassionate laws” and “creates special protections for abortion that limit cooperation with law enforcement, undermine the ability to report abuse, restrict the provision of public health information … erase the humanity of unborn children” and “interfere with valid state laws protecting life.”
Now, I said 28 members of Congress. That’s not very many. You’ll remember there are 535 of them, of which 100 are senators. Vance was one of only eight Republican senators willing to go this hard for menstrual surveillance by state law enforcement agencies. The other 20 signatories are members of the House and a quick review of the names shows they are mostly hardcore Freedom Caucus types.
But think about it: even in the House GOP caucus, they could only get 20 people to sign this thing. That’s how extreme it is. But JD Vance signed.
This aspect of the post-Dobbs world is often treated as hyperbole in mainstream news coverage, something that might be theoretically possible but not something that’s actually going to happen. But Vance was one of only eight senators who thought this rule was a bridge too far and endangered “valid state laws protecting life” and would “limit cooperation with law enforcement.” That’s not just a campaign gotcha. He’s for real about this stuff.
