As Tennessee’s abortion restrictions continue to evolve, there is growing concern about how much privacy the law gives to patients who travel from this state to clinics where abortion is unrestricted, like the one in Carbondale, Illinois.
The drive to from Nashville to Carbondale takes about three hours. The route passes over impressive suspension bridges and past billboards for famous bourbon distilleries. Signs beckon travelers to visit caves and the Corvette Museum. Thousands of people have made the trip, all to get to a nondescript building off the main thoroughfare in the small college town.
CHOICES, Center for Reproductive Health, is located there. It shares an entrance with a Freddy’s Frozen Custard and Steakburgers. For almost all Tennesseans, this is the nearest abortion clinic.
Driving up to the clinic, you might see — and hear — the protestors before you see the CHOICES sign. They’re carrying poster boards, some glossy and professionally printed, others handwritten. One little girl brandishes a baby doll. Some shout at people coming in: “Please don’t kill them.”
Before a car can even get into the parking lot, it’s stopped by men in bright orange security vests. It’s hard to tell if these men are there to help usher people in or convince them not to go. The pamphlets they hand out make it clear: It’s the latter.
CHOICES is based in Memphis and has been there for decades. That location offers STI screenings, pap smears, a walk-in clinic for issues like urinary tract infections. But it stopped performing abortions after the state’s ban went into place in 2022.
CHOICES President and CEO Jennifer Pepper said they saw the writing on the wall when the U.S. Supreme Court took up the Dobbs v. Jackson case.
“We knew we were on a time clock to lose abortion,” she said. “And so we moved very quickly to be able to open a second clinic in southern Illinois so that we could continue to provide abortion care.”
Since the organization opened its Illinois clinic in October of 2022, Pepper says the staff have served more than 3,500 patients — primarily from neighboring states Tennessee, Arkansas, Mississippi and Kentucky.
Pepper said the Dobbs decision and resulting ban were an escalation on what had become normal in the state.
“There’s just been an onslaught of additional abortion regulations every legislative session for us,” she said. “And so we spend the spring and the summer in Tennessee seeing what new regulation the legislature has passed to make care more difficult for our patients. And strategizing and working with our attorneys and other partners to figure out how we can continue to provide care within the bounds of whatever the hot new regulation is.”
But one of the issues the clinic’s attorneys and staff had to navigate lately didn’t come down from the legislature. It’s existing policy that is highlighting a risk.
Medical record privacy laws like the Health Insurance Portability and Accountability Act, or HIPAA, don’t apply to law enforcement. And now that abortion is criminal, abortion access supporters like Pepper are concerned about how those records can be used.
“I think in a lot of ways, as public health providers, we have really stressed the importance — and perhaps over-stressed — the ability of HIPAA to protect people’s services or their records, because we didn’t want that fear to be a … barrier to accessing care,” she said. “I think the public health infrastructure has also helped create some of that reverence around HIPAA and privacy. But it’s just — it’s just not what we’ve made it out to be.”
Chris Slobogin, director of Vanderbilt Law School’s criminal law program, says law enforcement has access to these records because they need to investigate insurance, Medicaid or Medicare fraud.
“Investigative agencies often want to get access to medical records for purposes of investigating fraud by doctors, by hospitals,” he said. “They don’t necessarily need to know the names of the patients, but they do need to know what expenditures were made and for what purpose. And so they often issue subpoenas to get a hold of that information.”
Notice he said subpoenas — not warrants.
“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,” he said. “Some people find that surprising. I think a lot of people think, well, medical records are perhaps the most private thing about oneself.”
The Biden Administration proposed a rule change to strengthen HIPAA and protect patients’ reproductive health records from law enforcement.
Vice President Kamala Harris explained the proposal in a cabinet meeting last year.
“Many states have proposed and passed laws that are now going to criminalize health care providers for providing reproductive health care,” she said. “It’s going to be a crime, which means that it is very likely if law enforcement requests your personal and private medical records, they may be entitled to receive them.”
Nineteen state attorneys general have pushed back against this proposal — including Tennessee’s Jonathan Skrmetti. He and the others said they’d sue the federal government if it came to pass.
Skrmetti declined to comment for this story, but in an earlier interview, he said this is another example of the federal government encroaching on states. He also raised some concerns about the scope.
“This applies to reproductive health care, which means any health care related to a reproductive system or reproductive organs,” he said, “which, of course, entails the hot-button issues. But it could entail all sorts of other pieces of medical practice. We couldn’t investigate a urologist for fraud, potentially, under this rule.”
He also took issue with the overall premise, emphasizing that, under current law, offices like his can’t go after patients.
"Tennessee’s laws — and as far as I’m aware, every other state’s law that has any sort of restriction on abortion — target the provider and absolutely does not target the patient. So that — that’s just an entirely baseless bit of fearmongering right there.”
Pepper, of CHOICES, said things are not that clear cut; the line between investigating fraud, between looking into providers or patients, gets blurry. She said she’s seen this with care for transgender patients, which the clinic also offers.
Just a few weeks before the proposal to protect abortion records came out, Jonathan Skrmetti’s office subpoenaed a local hospital to get transgender patients’ medical records, the providers who referred them, as well as all emails to and from the medical center’s general LGBTQ health program going back to 2015, according to court documents. This was an investigation into alleged insurance fraud.
Pepper remembers the day the news came out.
“We had a meeting that morning kind of just talked what we understood was happening and talked with our legal experts to get things kind of make sure that we had a plan for when Attorney General Skrmetti subpoenaed our records … if they decided to target CHOICES,” she said.
Pepper notes investigations like these aren’t the only way law enforcement can end up interacting with health providers. She said patients who wind up in the criminal justice system often do so through health facilities usually because of confusion about mandatory reporting.
The issue there, she says, is that medical workers can get confused on what mandatory reporting laws require of them. Under those laws, for example, a nurse who sees a patient with a gunshot wound would have to report the crime to the police.
Confusion or fear can lead workers to call on law enforcement inappropriately, Pepper said, and that can have dire effects on pregnant patients.
In a notorious incident in Texas, prosecutors arrested and jailed a woman named Lizelle Herrera. She was accused of inducing an abortion on herself. Hospital staff reported her to the authorities, according to the local prosecutor. There was some confusion; none of Texas’ abortion laws criminalize patients. The charges against her ended up being dropped.
Earlier this year in Ohio, a grand jury decided not to prosecute a woman named Brittany Watts. Law enforcement had charged her with the crime of abusing a corpse after she miscarried. She went to the hospital after her miscarriage, and according to the Washington Post, a nurse at the hospital reported Watts. The charges were dropped.
Again, current laws don’t prosecute patients, and they don’t go after providers who are performing the procedure in states where it’s legal. But abortion access advocates like Pepper say the records access would be a major concern if those laws did change.
A proposal making its way through the statehouse now could highlight how important medical records are in prosecuting abortion.
Tennessee lawmakers are now considering a bill that would make it a felony for adults to help teenagers get abortions unless it’s their own child. Among other things, it says anyone who buys abortion pills for a teen or helps them travel out of state can go to jail and face civil lawsuits. Access to medical records would prove a teenager who traveled out of state got an abortion in that state — which would make it easier to prosecute the adult who transported them. It’s unclear whether the state would be able to enforce that law if the bill passes.
The text mirrors an Idaho law, but that one is not in effect. Abortion access advocates challenged it in federal court. The magistrate ordered the state to stop enforcing the law while its constitutionality was assessed. The judge took issue with ambiguity in the law, raising the concern that it gives law enforcement an opportunity to apply the law arbitrarily. She also raised First Amendment issues, saying it could target protected political speech.
Tennessee and Idaho are two of the many states with legislatures working to pass novel abortion restrictions. There’s a common path for these: The bill passes; opponents challenge the bill’s constitutionality in court; and the courts decide whether that new type of law is legal. If the ban on helping teenagers passes in Tennessee, its fate will likely be entwined with the Idaho law’s.
