Biden administration seeks new privacy rule as Tennessee pushes 'abortion-trafficking law'

A federal civil rights official with the U.S. Department of Health and Human Services said the agency will "continue to support health care and privacy rights" for Tennesseans in the face of legislation that could make it illegal to help a minor get an abortion without parental consent.

The legislation, HB 1895/SB 1971, targets an adult who "recruits, harbors or transports" a pregnant minor within the state for the purposes of receiving a criminal abortion, defined by Tennessee's near-total abortion ban, or for getting abortion medication.

While the legislation doesn't explicitly refer to out-of-state abortions, transporting a minor to receive an abortion would almost certainly involve traveling out of state, due to Tennessee's near-total abortion ban.

Melanie Fontes Rainer, the director of the Office for Civil Rights at HHS, said that the Biden administration is aware of the bill, as it joins a slate of similar legislation across the country focused on the overlap reproductive health care access and privacy rights.

"We’re in a moment in time where we’re seeing the nexus between what it means to have health care and how you engage with your provider, versus people seeking your medical information in ways that are unprecedented," she said in an interview Tuesday in Nashville. "I think it’s very clear that the Biden administration is doing all it can to protect access to care. ... It's something the administration is tackling on all fronts, including with the U.S. Department of Justice, the White House and the president."

The legislation has passed the Senate, though the House version has not yet passed the full committee process. With just days left in the legislative session, the two versions also differ. The House version would establish a new Class C felony that could carry three to 15 years in prison, while the Senate version established a Class A misdemeanor, punishable by less than a year in prison.

The bill mirrors a slate of similar bills around the country, and reproductive health advocates have long warned interstate travel could be the new battleground for anti-abortion activists in the wake of the 2021 Dobbs decision, which overturned the constitutional right to abortion access. A similar law in Idaho was blocked temporarily by a federal judge amid an ongoing lawsuit.

One of the key legal arguments against "abortion trafficking" laws is based on the Fourth Amendment right of interstate travel, which was cited by the federal judge in Idaho's case. In the 2021 Dobbs decision, U.S. Supreme Court Justice Brett Kavanaugh concurred with the majority opinion but also wrote that one state cannot “bar a resident of that State from traveling to another state to obtain an abortion…based on the constitutional right to interstate travel.”

A growing concern among opponents of the bill surround the privacy rights of individuals seeking care —particularly around health care records protected by HIPAA, the federal health privacy law, which would likely be key in any prosecution to prove an individual crossed state lines for health care.

According to Rainer, while HIPAA-covered entities like health care providers are allowed to share records with law enforcement if asked, they are not required too.

Rainer said her agency is working to close that permissive gap, with a proposed rule banning HIPAA entities from sharing personal health care records with law enforcement.

"We're working on a proposed rule that would prohibit use and disclosure to law enforcement in certain instances: when it’s used to identify a person, or investigate or prosecute a person, who is lawfully seeking reproductive health care in various instances," she said. "In those instances, it’s important because it's still lawful reproductive health care. This rule would be helpful to women across the country that are having to go elsewhere for lawful reproductive health care."

House sponsor Rep. Jason Zachary, R-Knoxville, has argued in committee that his bill doesn't say anything about out-of-state travel and doesn't explicitly bar anyone from traveling to another state, though Democrats have pointed out that an out-of-state abortion would have to occur for the proposed crime to apply.

The bill saw strong pushback last week from Senate Democrats before passing with a 26-3 vote.

"What we're doing is pretty outlandish," said Senator Jeff Yarbro, D-Davidson, after the failure of his proposed amendment that would have made an exception to the rule if a child was raped by their parent. "We need to take a long hard look at ourselves. ...We're making a law that a raped child has to go to their rapist to seek out permission before they can see a doctor....It's protecting abusers."

Sen. Raumesh Akbari, D-Memphis, also proposed an amendment to the bill that was similarly blocked, which sought to define abortion as not including IVF and contraceptives.

“There are people who are in situations and circumstances that we cannot fathom,” Akbari said. “If someone is a victim of rape or incest and a teenager, and they want to seek these services, their abusers can determine if they can access them. That’s a step too far.”

“We’ve decided abortion is only available to save the life of the mother,” said Sen. Paul Rose, R-Covington. “Unless the parents approve, you cannot take a minor across state lines to get an abortion.”

This article originally appeared on Nashville Tennessean: Feds to seek privacy rules as GOP pushes 'abortion-trafficking laws'