Several bills making their way through the Tennessee statehouse highlight the debate over law enforcement’s access to reproductive health care records.
Lawmakers are working to crack down on adults who support minors seeking abortion or gender-affirming care. (The laws wouldn’t apply to parents helping their own children, or anyone who has a parent’s express permission.) At the same time, federal officials are considering additional protections for medical records. There could be a lot at stake as some patients travel across state lines for care, but even basic details about the measures have caused confusion in state debates.
West Tennessee Republican Sen. Paul Rose authored the Senate version of the abortion aid restriction.
“What this bill does: It seeks to protect parents, to give them their God-given rights — and our state-given rights — to protect their minors from obtaining an abortion,” he said.
A hypothetical example: A woman takes her niece to New York to get an abortion, and she didn’t tell the parents. Under this new law, that would be a crime.
This is where medical records could come in. She could say they went to New York only to see a musical on Broadway, but the niece’s medical records would prove she got the procedure.
Last summer, the U.S. Department of Health and Human Services announced a pitch to expand HIPAA to shield reproductive health records from law enforcement. The rule change has advanced out of the public comment period, and the agency should release an updated proposal soon.
The director of the Office of Civil Rights, Melanie Fontes Rainer, said in an interview that the policy is meant to protect patients and providers, especially under circumstances where a patient leaves a state with a ban to receive a legal abortion in a different state.
She says in the meantime, providers should be familiarizing themselves with HIPAA and records requirements. Often, the law allows providers to share records but doesn’t require them to.
“Providers should be aware of that, so the first time they’re thinking about this isn’t when law enforcement is coming into their building,” she said.
Law enforcement agencies can also work with the courts to force providers into overturning the documents. And the bar for that is lower than you might think.
Chris Slobogin, the Milton R. Underwood Chair in Law at Vanderbilt Law School, said in a past interview that law enforcement agencies don’t have to get a warrant to obtain medical records. Instead, they can meet a much easier threshold with a subpoena.
“Medical records are more easily obtained, for instance, than authorization to go inside someone’s house to conduct a search of the living room, or bedroom, or what have you,” Slobogin said. “Some people find that surprising. I think a lot of people think, well, medical records are perhaps the most private thing about oneself.”
Tennessee Attorney General Jonathan Skrmetti joined more than a dozen other attorneys general to decry the HHS proposal. They argued the federal government was overstepping its authority and again attempting to force pro-abortion policies on anti-abortion states. Skrmetti also said in an interview that the policy’s broad parameters would interfere with standard investigations. As an example, he said a urologist committing insurance fraud would be more difficult to pursue.
The measures’ origins
Rep. Jason Zachary, R-Knoxville, authored the House version of the abortion assistance ban. He presented the bill to the House Population Health Subcommittee in January.
He said a father in his district called him in tears. The man’s 14-year-old daughter was pregnant, and her boyfriend’s family was driving her out of state for an abortion.
“He said, ‘What can you do to stop it?’ ” Zachary said. “And I made call after call after call, and there was nothing I could do to stop it.”
The other chamber’s author, Rose, said he was inspired by something he read on Planned Parenthood.
“It is reported that Planned Parenthood was caught admitting that they assist underage girls … or adults associated with them to skirt state laws and travel out of state without their parent’s knowledge or consent,” he said.
He’s referring to Planned Parenthood’s patient navigation services — one of the many programs linking patients in anti-abortion states with information about out-of-state care. That can include help finding the nearest clinic, determining the best form of abortion given the stage of pregnancy and where to find financial assistance.
Sen. Janice Bowling is the lead sponsor on the Senate’s version of the ban on gender-affirming care assistance. She presented the measure to the Senate Judiciary Committee earlier this month. She described the General Assembly’s efforts last year to ban several forms of care, but focused on gender-affirmation surgery.
“What this bill would do is a prevent an adult from going across state lines to take a child — without parental knowledge or consent — to have such surgery.”
Tennessee is one of several anti-abortion states considering similar bills. And the proposal mirrors a bill that passed in Idaho last year.
Challenges to the policy
Abortion access advocates challenged Idaho’s ban on abortion assistance for teens in federal court. In November, U.S. District Magistrate Debora K. Grasham ordered Idaho to hit the brakes on enforcing the law. She agreed with the abortion access advocates, saying the law raises constitutional problems.
One of those problems: First Amendment rights.
The First Amendment concerns stem from a string of text restricting free speech that also exists in Tennessee’s bill. It punishes adults who “recruit, harbor or transport” minors for abortion care.
“Plaintiffs’ activities aimed at providing information, support, and assistance about reproductive health options, including legal abortion services, to pregnant individuals constitute protected speech,” the ruling reads in part.
And, she wrote, the law blocks that activity.
“It plainly prevents Plaintiffs from engaging in their intended protected activities of communicating information, advocacy, support, assistance, funding, and association with minors located in Idaho who are seeking to procure or obtain legal abortion services,” the document reads in part, going on to say that it has stopped “Plaintiffs from continuing to provide information, practical and emotional support, funding, and assistance to pregnant minors in Idaho who seek to obtain lawful abortion services.”
Ambiguity in the bills
Grasham wrote in her ruling that Idaho’s law is too vague to enforce fairly.
She and other opponents say it’s unclear what “recruit” and “harbor” would mean. It’s common for legislation to have a section with definitions to ensure clarity. None of these bills have one.
Critics say they’re worried that could mean something as simple as telling a Nashville teenager their nearest abortion clinic is in Carbondale, Illinois.
Democratic Sen. Jeff Yarbro talked about that on the Senate floor.
“We don’t know what we’re outlawing here,” he said. “We’ve never seen a court interpret ‘recruit or harbor.’ They’re not defined in this statute. We’re just creating a mess. And we’re creating a mess around … things that are pretty constitutionally protected. Typically, the government doesn’t regulate our conversations.”
Last week, abortion supporters and state Rep. Aftyn Behn set up a table on a busy Broadway street corner. They handed out fliers about where to get abortion medication and how to donate to abortion funds, which provide patients with financial assistance for medical bills, travel, lodging and childcare.
“Under how the bill is written, this type of action — providing resources to young people who are on Broadway — could potentially be criminalized this time next year.”
There is also ambiguity in the bill banning gender-affirming care aid that has surfaced in debates. During its committee hearing on April 2, Bowling described the forms of care the General Assembly banned last year.
She said that law banned surgery and hormone therapies that would change a minor’s appearance. The state code that came out of the bill says minors can’t undergo any medical procedures that enable them to identify with a sex different from the one assigned at birth. It also bans any procedures that would alleviate gender dysphoria, a form of distress a trans person can experience.
The measure had a floor hearing April 11. Its description on that agenda was more vague. It said the bill criminalized transporting minors for any medical treatments that are banned in this state, and one exchange on the floor included misinformation. Democratic Sen. Heidi Campbell asked what treatments that would include.
“Would they also not be allowed to be transported for the purpose of gender-affirming care?” she said.
“Those treatments are not prohibited by the laws that we passed last year,” Bowling replied, inaccurately.
The Senate has passed their versions of the bans. The House is still considering them.
