The US Department of Health and Human Services will propose a new rule on Wednesday, aimed at safeguarding privacy and prohibiting the prosecution of individuals who seek abortions.
The new rule proposal comes as Vice President Kamala Harris is set to convene an interagency taskforce meeting on reproductive rights at the White House. Attorney General Merrick Garland and Health and Human Services Secretary Xavier Becerra will also attend.
In a call with reporters, senior administration officials previewed the notice of proposed rulemaking from the Biden administration, issued in response to a Texas federal judge’s ruling late last week to suspend the US Food and Drug Administration’s approval of medication abortion drug mifepristone.
“Specifically, this NPRM proposes to strengthen privacy protections by prohibiting the use or disclosure of protected health information by regulated entities, such as health insurance plans, providers and others, specifically for a criminal, civil or administrative investigation into proceeding against a person in connection with seeking, obtaining, providing or facilitating reproductive health care where such health care is lawful under the circumstances in which it was provided,” a senior administration official said.
The senior administration official called it a “step further” from existing guidance issued in the wake of the US Supreme Court’s ruling last summer that overturned Roe v. Wade and ended the right to an abortion nationwide. The current guidance, still in effect, protects HIPAA privacy rights by not requiring the disclosure of patient information under certain circumstances. But officials said they found that some providers would still “get fearful,” about following the guidance when subpoenaed.
This proposed rule, they said, providers further cover “to not provide that information, if it’s not for the specific purpose articulated in the role.”
The US Department of Education is also issuing guidance to remind over 20,000 school officials of their obligations to student privacy, according to a statement from the White House, among other new administration efforts.
The Biden administration is issuing these limited actions after the Texas ruling rocked the country last week. The minimal reach of the proposed rules and guidance illustrate the lack of options the administration can take to protect access to this abortion pill, should the ruling take effect and be pulled from the market. The Justice Department and the manufacturer of mifepristone have already appealed, asking the US 5th Circuit Court of Appeals to put on hold the judge’s ruling that could make the drug unavailable nationwide starting Friday at midnight.
But before Wednesday, the White House had yet to outline what other steps it could take to secure its availability. The administration took similar limited steps to protect access to abortion after the Dobbs decision, but Friday’s ruling set off calls from frustrated progressive Democrats for the FDA and Biden administration to ignore the ruling – a request that the administration has said would set a “dangerous precedent.”
A separate and conflicting abortion pill ruling in Washington on the same day, created arguably the most contentious and chaotic legal flashpoint over abortion access since last summer.
Those rulings prompted a fresh scramble from administration officials, who had been bracing for the Texas ruling to come down, and officials convening behind closed doors to work through a response. After the decision dropped Friday, a senior administration official said the White House immediately began engaging allies on the next steps.
“We’ve had very close contact with the Hill with members both in the House and the Senate, and staff, with groups who are focused on abortion, women’s groups, health care providers,” a second senior official told CNN. “We’ve also been in close contact, of course, with allies on the state level, state legislators, attorneys general etc. And we will continue to do all of that.”
Harris, in her remarks at the taskforce meeting on Wednesday, will reiterate President Joe Biden’s pledge to fight the ruling.
The vice president, a third senior administration official said, will “highlight the administration’s unwavering commitment to protecting reproductive rights in the midst of a health care crisis.”
“The vice president will also point out that this unprecedented decision is not only an attack on women’s freedom to make decisions about her own body, but it also threatens our nation’s system of drug approvals and the rights of Americans across the country who expect that a medication approved by the FDA and prescribed by their doctor will be available to them when they need it,” the official continued.
Harris has led the administration’s response on abortion rights. Since the Supreme Court overturned Roe v. Wade, she has hosted dozens of roundtable discussions about reproductive rights, including access to contraception and medication abortion, while meeting with state legislators across the country.