MEMPHIS, Tenn. — With the reversal of Roe v. Wade, states have the right to decide if abortions are illegal and how they want to enforce that.
Right now, abortions are illegal in nine states and will be illegal soon in at least seven more states.
Currently, no state is prosecuting women for getting an abortion, it mainly focuses on the provider, but it doesn't mean it won't change. Women are now wondering if HIPAA will protect their reproductive health data from legal action.
Terry McGovern with Columbia University Medical Center said health care providers shouldn't disclose medical information but there are exceptions for law enforcement purposes. HIPAA doesn't protect against court-issued warrants.
So in states where abortions are considered a crime, health organizations can be forced to hand over health records if someone is suspected of an abortion.
But there must be probable cause.
According to McGovern, a person might get flagged for an investigation when they are at the doctor's office. For example, if someone seeks treatment for a miscarriage in a state where abortion is illegal and a healthcare provider suspects you've had an abortion with an abortion pill they could report you.
Though McGovern said it's up in the air if physicians will be mandated to report this in the future.
"A healthcare provider just can't make a call because you told them something, there's need to be some legal or law enforcement request that is formal before that should happen," she said.
However, doctors are allowed to report personal health information if they think a crime has been committed. McGovern said this exposes the holes in HIPAA laws.
"There is movement ahead to figure out how federal regulations will be strengthened to protect reproductive health regulations,” McGovern said.
Since states are not prosecuting women as of now, prosecutors would use patients' medical records to find who did the abortion.
In Tennessee, abortions are now considered a Class C felony, and doctors could face prison time and up to a $10,000 fine unless they can prove it was to save the mother's life.
HIPAA doesn't apply to all groups that might seem to be providing medical care. Crisis Pregnancy Centers, which are non-profit organizations are operated by anti-abortion activists and provide free pregnancy tests, sonograms, and counseling. They typically lack medical licenses, so they don't have to comply with HIPAA. They can go to law enforcement if they suspect an abortion.
The reversal of Roe v. Wade doesn't stop people from traveling across state lines to get an abortion. The court hasn't officially ruled if allowing states to ban their residents from traveling for an abortion would be constitutional.