Document Type

Article

Publication Title

Berkeley Technology Law Journal

Abstract

A few days after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, the Biden administration issued guidance seeking to reassure doctors and patients that the federal HIPAA Privacy Rule would allow women to feel confident that they could still seek reproductive healthcare without worrying that the information in their medical records would end up in the hands of police. As scholars focused respectively on the criminalization of poverty and reproductive conduct (Wendy Bach) and health policy and privacy (Nicolas Terry), we were less than reassured. We write this essay to emphasize how, rather than revealing the strength of healthcare privacy protections in U.S. law, Dobbs and the Biden administration’s highlighting of limited HIPAA protections and seriously inadequate protection of mobile app data draw crucial attention to what has always been a relatively weak set of privacy models. Tragically, and long before Dobbs, this weakness has facilitated thousands of prosecutions related to reproductive conduct. After Dobbs this will likely only escalate. In Part II we begin by noting the United States’ long history of criminalizing reproductive conduct and describe the nature of the likely escalation of these harms. Part III turns directly to privacy and catalogues the privacy harms at stake after the Dobbs ruling and the passage of state legislation antithetical to reproductive freedoms. Part IV turns to HIPAA itself, drawing a sharp contrast between what people assume HIPAA does and its far less protective reality, especially in the context of post-Dobbs criminalization. Part V briefly surveys some of the federal and state guidances, statutes, and executive orders designed to lessen the impact of Dobbs. Part VI asks whether HIPAA or other federal laws can be expanded to better protect reproductive information and discusses the potential passage of the bipartisan and bicameral American Data Privacy and Protection Act. The essay concludes by acknowledging the uncertainties and harms that lie ahead and the urgent need for federal corrective action. While we write to highlight the grave informational privacy issues that Dobbs has set in motion, it is our hope that in the aftermath of Dobbs there might be sufficient political will to revisit informational and healthcare privacy, and to build far more robust barriers to the use of healthcare data to reduce the criminalization of women and support their reproductive choices.

Publication Date

2023

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