LINCOLN — Nebraska Attorney General Mike Hilgers said Monday that his office “strongly supports” reproductive health privacy in response to a letter last week from nine state lawmakers.
Those lawmakers in a July 26 letter asked Hilgers to clarify his stance on reproductive health privacy and medical autonomy. They questioned why it might be important to have Nebraskans’ medical records from other states and whether it is Hilgers’ intention to prosecute individuals who receive or aid in legal abortion care.
Their letter came after Hilgers joined attorneys general from 18 other states last month in opposing a proposed federal expansion of reproductive health privacy.
Hilgers wrote to Omaha State Sen. Machaela Cavanaugh, who led the letter effort, stating that his office is “defending the status quo” of patient privacy while the proposed Biden administration rule would create “significant loopholes.”
Hilgers said a 2000 Clinton-era rule, which sought to “balance individuals’ privacy interests against the legitimate interests in certain uses of health information,” remains the status quo.
It allows law enforcement to obtain records under a court order and permits (but does not require) medical providers to disclose limited information without consent if it’s needed to determine whether someone else broke the law and is not intended to be used against the victim, according to Hilgers.
Preserving that rule, Hilgers said, does not mean law enforcement can get the disclosure of records “on simply their say-so.”
‘Chills investigative efforts’
The U.S. Department of Health and Human Services’ new proposal would tighten the use and disclosure of protected health information, including reproductive care, in investigative or enforcement proceedings if the care was provided lawfully.
The changes to the HIPAA Privacy Rule would extend to care across state lines and expand the definition of reproductive care to all care related to the reproductive system.
Hilgers offered a handful of instances in which law enforcement might need health information that he said could be limited or prohibited under the proposal. Those examples include:
- Obstetricians who may have botched a series of C-sections.
- Human traffickers who take their victims to a clinic or hospital for any reproductive care.
- Rapists who sexually assault underaged victims, who then become pregnant and seek any reproductive care.
- Sexual predator family members who assault minor children and coerce them into obtaining an abortion.
“Far from applying to a narrow class of abortion-related procedures, the Proposed Rule chills investigative efforts into serious criminal wrongdoing and other misconduct,” Hilgers wrote. “In doing so, it undermines our ability to keep Nebraska citizens — and in particular Nebraska patients — safe.”
Cavanaugh said this argument of harming investigations is “disingenuous” since tools exist to fully prosecute human trafficking and other criminal cases.
Rule is beyond ‘limited scope’
Hilgers told the lawmakers that some of their questions “appear to rest on the premise” that the rule is in the “limited scope” of preventing law enforcement from obtaining records that could be used to prosecute women for abortions.
“That is emphatically not the case,” Hilgers said.
Nebraska law specifically prohibits the prosecution of women for obtaining an abortion procedure, Hilgers noted, including the 12-week abortion ban, tied to gestational age, passed by the Legislature in May.
Hilgers did not respond to the letter’s citing of an “unfortunate history” of prosecuting pregnancy outcomes.
They pointed to a Norfolk, Nebraska, abortion-related case in which the mother helped her then-17-year-old daughter obtain abortion pills last spring for an abortion in the teen’s third trimester. The pair then burned and buried the aborted fetus.
The mother faces sentencing after pleading guilty to providing an illegal abortion, false reporting and tampering with human skeletal remains. The daughter pleaded guilty to concealing or abandoning a dead body and was sentenced this month to 90 days in jail and two years of probation.
The lawmakers joining Machaela Cavanaugh in the letter were Megan Hunt of Omaha, Danielle Conrad of Lincoln, Jen Day of Omaha, John Cavanaugh of Omaha, George Dungan of Lincoln, John Fredrickson of Omaha, Carol Blood of Bellevue and Jane Raybould of Lincoln.