Can HIPAA protect you from anti-abortion laws? What to know about medical privacy rights.

With last week’s U.S. Supreme Court ruling overturning Roe v. Wade clearing the way for states to restrict access to abortion care, activists are scouring federal laws to help protect abortion rights across the country.

While the Health Insurance Portability and Accountability Act, or HIPAA, is best known for shielding patient health information, it may not be as protective of medical privacy as you may think.

“People’s perception of HIPAA is sometimes overstated,” said Katherine Kraschel, executive director of the Solomon Center for Health & Law Policy at Yale Law School. “It doesn’t protect as much health information as what people may think.”

The Department of Health and Human Services issued new guidance this week addressing patients’ concerns about their medical privacy. But the guidance, including tips on how to turn off smartphone location data that could be used by those seeking to deny care, largely underscored the law’s limits.

Activists have reason for concern as states have introduced more than 550 provisions to restrict access abortion care this year, according to the Guttmacher Institute, a reproductive health rights research organization operating in New York and D.C.

Here's how HIPPA can protect your medical privacy regarding abortion and how it can't.

What is HIPAA?

HIPAA is a federal law passed in 1996 that sets a national standard to protect patient health information from being disclosed without the patient’s consent or knowledge, according to the Centers for Disease Control and Prevention.

The U.S. Department of Health and Human Services issued the HIPAA privacy rule to ensure an individual’s health information is protected while also allowing the flow of information between entities like health care providers and health plans to promote quality health care.

However, the privacy rule allows the use and disclosure of protected health information without the patient’s knowledge or consent in certain situations — like when law enforcement is involved, for public health activities, or during judicial and administrative proceedings.

Medical privacy may also be denied in situations of abuse, neglect or domestic violence; organ donation; research; workers compensation; and essential government functions.

Is HIPAA based on Roe v. Wade?

HIPAA is not explicitly grounded in any constitutional rights, said Rebecca Reingold, associate director of the O’Neill Institute for National and Global Health Law at Georgetown University Law Center.

Was HIPAA overturned?

HIPAA was unaffected by last week’s Supreme Court ruling that overturned Roe v. Wade, legal experts say.

Can HIPAA protect people who defy state anti-abortion laws?

Legal experts say HIPAA may not be able to protect patients or providers who break anti-abortion laws.

The HIPAA privacy rule contains an exception for federal and state law enforcement, Reingold said.

They can use a court order, a court-ordered warrant, subpoenas, or administrative requests to require a provider to disclose a patient’s protected health information without their consent.

“If a state prosecutor has reason to believe that a health provider violated the state’s abortion ban, the prosecutor could compel the provider to release the relevant medical records,” she said. “A provider would likely face fines or penalties for refusing to comply with such an order.”

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However, new HHS guidance says health care facilities cannot freely divulge private medical information to law enforcement without a court ordered mandate where "state law does not expressly require such reporting."

In the event that a law enforcement official presents a health care facility with a court order requiring private health information, HHS said the privacy rule “would permit but not require” the clinic to disclose the request information.

"Generally, state laws do not require doctors or other health care providers to report an individual who self-managed the loss of a pregnancy to law enforcement," the guidance said.

It’s also important to know what facilities are covered under HIPAA, legal experts say.

For example, most period-tracking apps and crisis pregnancy centers are not protected by HIPAA because they don’t participate in a federal health care program. This means a person’s medical information could be released to anyone – not just law enforcement – without their consent or knowledge.

The Office for Civil Rights is also issuing information for individuals about protecting the privacy and security of their health information when using their personal cellphones or tablet.

The new guidance explains how to turn off the location services on Apple and Android devices, and identifies best practices for selecting apps, browsers and search engines that support increased privacy and security.

Terry McGovern, chair of the population and family health department at Columbia University’s Mailman School of Public Health, urges Americans to research HIPAA-covered health care facilities before sharing private medical information.

“People need to not go off the street to a provider they don’t know,” she said. They “need to network about who they trust because it’s quite serious.”

Can HIPAA be strengthened to protect abortion?

In many cases, HIPAA does not protect health information from law enforcement. But experts say legislators in some states are working to strengthen medical privacy laws for those who want to travel for abortion care.

No state laws currently restrict travel for an abortion. In fact, Justice Brett Kavanaugh – who voted to overturn Roe v. Wade – emphasized the right to travel in a concurring opinion that said banning abortion cannot prohibit residents from traveling to other states to seek care.

“May a state bar a resident of that state from traveling to another state to obtain an abortion?” he wrote. “In my view, the answer is no based on the constitutional right to interstate travel.”

But a bill filed in Missouri last year sought to restrict abortions outside states lines in certain circumstances. It’s not clear whether states have the right to extend their influence across state lines in this way, but legal experts say more states could follow Missouri’s lead.

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"I wouldn't be surprised to see Missouri and other states try to enforce it and use that as a deterrent to prevent a lot of people from traveling for abortion," Nathan Cortez, a Southern Methodist University law professor who specializes in health law, told USA TODAY before Friday’s ruling.

To protect out-of-state residents, legal experts say some states with access to abortion are strengthening their medical privacy laws so providers can’t be compelled to release health information to law enforcement from other states.

“The prosecutor could ask the doctor’s office or the state in which the abortion occurred for relevant evidence documentation,” said Neil Siegel, professor of law and political science at Duke University. “But I don’t imagine states that continue to provide access to reproductive health care are going to cooperate, nor would they be required to.”

Legal and health experts acknowledge that state laws regarding abortion are confusing, but they urge pregnant people to seek medical attention during an emergency. This is protected by federal law under the Emergency Medical Treatment Act, which requires emergency departments to treat patients until they’re stabilized.

Although it’s unclear how anti-abortion legislation will play out, McGovern said HIPAA may become a critical tool for abortion-rights activists.

“HIPAA is more important than ever,” she said. “People have to be able to see a doctor and feel safe.”

Contributing: Bailey Schulz and Eve Chen, USA TODAY. Follow Adrianna Rodriguez on Twitter: @AdriannaUSAT.

Health and patient safety coverage at USA TODAY is made possible in part by a grant from the Masimo Foundation for Ethics, Innovation and Competition in Healthcare. The Masimo Foundation does not provide editorial input.

This article originally appeared on USA TODAY: Roe v. Wade: What is HIPAA? Can it protect people seeking an abortion?