LINCOLN — Nine state lawmakers urged Nebraska Attorney General Mike Hilgers in a letter Wednesday to clarify his stance on reproductive health privacy and medical autonomy.
Their letter comes one month after Hilgers joined a group of state attorneys general to oppose a federal rule change that would expand protections for reproductive health information.
State Sens. Machaela Cavanaugh, Megan Hunt, Danielle Conrad, Jen Day, John Cavanaugh, George Dungan, John Fredrickson, Carol Blood and Jane Raybould penned the letter, which said the state has an “unfortunate history” of prosecuting women and health care providers for pregnancy outcomes.
Citing recent abortion-related prosecutions in Norfolk and Hilgers’ efforts against the federal expansion of HIPAA privacy, the senators said they have “grave” and “serious concerns” about the role of law enforcement and prosecutors in investigating and charging women and providers for reproductive care.
The senators said they look forward to a “prompt and clear response” from Hilgers to the following questions:
- Why is it important to have access to people’s medical records from other states?
- Is it the attorney general’s intention to prosecute individuals who receive care in states where it is legal?
- Is it the attorney general’s intention to prosecute individuals who aid others in seeking and receiving care in other states?
“If these are not your intentions, please share clearly why it would be necessary to have access to this information without due process of a court order or subpoena,” the group wrote Hilgers.
Criticism ‘shaped by misleading rhetoric’
A spokesperson for the Nebraska Attorney General’s Office confirmed Hilgers received the letter and said he will respond after reviewing it. The spokesperson pointed to a July 20 statement from the office that Hilgers’ signing of the Mississippi-led letter “is being shaped by misleading rhetoric.”
According to that statement, the proposed rule narrows exceptions of accessing information for law enforcement purposes that could make it harder — and in some cases impossible — to obtain evidence needed “to hold bad actors accountable.”
It states the rule could protect a sexual predator family member who assaults a minor child and, in an attempt to cover up the crime, obtains abortion services in another state. It also argues the protections could extend to a nurse or pharmacy tech who steals abortion pills and distributes them outside normal channels or an activist who provides harmful advice to women on “self-help” or “back-alley” abortion techniques.
“The breadth of the Administration’s proposed rule means it would likely be used as a shield by bad actors,” the statement reads.
Federal efforts to expand privacy
Last month, Hilgers and nearly 20 state attorneys general in a letter encouraged the U.S. Department of Health and Human Services to drop a proposal to expand reproductive health privacy under HIPAA’s Privacy Rule.
The attorneys said the Biden administration has pushed a “false narrative” that states are treating pregnant women as “criminals” and punishing medical personnel for providing lifesaving care.
“Based on this lie, the Administration has sought to wrest control over abortion back from the people in defiance of the Constitution and Dobbs,” the attorneys wrote, citing the 2022 U.S. Supreme Court case that overturned constitutional protections for abortion.
The proposed modification would prohibit the use and disclosure of protected health information — including reproductive health — in criminal, civil or administrative investigations or proceedings against those who lawfully provided or assisted care.
This could include doctors, friends or family who help with care across state lines.
Information of care provided or assisted in unlawful settings could still be accessed under a court order, which led to the recent prosecution of a mother and daughter in Norfolk.
Norfolk mother and daughter
Last week, 18-year-old Celeste Burgess was sentenced to 90 days in jail and two years of probation for burning and burying a fetus she aborted with her mother’s help in the spring of 2022. Jessica Burgess helped her then-17-year-old daughter obtain the abortion pills and gave them to her daughter.
Celeste Burgess was into her third trimester, past the legal limit for an abortion in the state, which was at the time 20 weeks post-fertilization. She pleaded guilty to concealing or abandoning a dead body.
Jessica Burgess pleaded guilty earlier this month to providing an illegal abortion, false reporting and tampering with human skeletal remains. She faces sentencing later this year.
Norfolk police opened the investigation following a tip and secured a search warrant to obtain Facebook messages between the mother and daughter.
Some lawmakers and political observers have criticized the prosecutions of Jessica and Celeste Burgess for opening the window to more prosecutions of abortion-related care.
Currently, state law allows abortions up to 12 weeks gestational age after the Nebraska Legislature passed Legislative Bill 574 in the spring, halving the window of allowable abortions. All nine lawmakers who wrote to Hilgers opposed LB 574.
The ACLU of Nebraska, on behalf of Planned Parenthood, is challenging LB 574 in court. The judge overseeing the case is considering arguments regarding the law and could issue a ruling at any time following a hearing last week.
Criminal and civil immunity
The nine state lawmakers told Hilgers that politicians who seek to further restrict or ban abortion “frequently claim that efforts to do so will not result in criminal prosecutions of women seeking abortion care or medical providers.”
“To make that assurance meaningful,” the letter said, the senators asked Hilgers to support State Sen. Jen Day’s LB 391, which will carry over to the 2024 legislative session. The bill would provide criminal and civil immunity for pregnancy outcomes.
The Judiciary Committee considered the bill in a March 22 hearing but has not taken any action on it.
“We look forward to your engagement to pass this legislation and help mitigate the chilling effect your advocacy, and the advocacy of other politicians, have had on Nebraskans seeking health care,” the lawmakers wrote.