S-4920-119
Read twice and referred to the Committee on Health, Education, Labor, and Pensions.
Sponsored by Mazie Hirono (D-HI)
What it does
This bill would prohibit HIPAA-covered entities (such as hospitals, clinics, and insurers) and their business associates from disclosing a patient's pregnancy termination or loss information — including records related to abortion, miscarriage, stillbirth, and ectopic pregnancy — in any federal, state, local, or tribal legal proceeding without the patient's written authorization. It would also require the Secretary of Health and Human Services to update health IT certification rules to allow data segregation of this information and to clarify that withholding such records does not constitute illegal "information blocking." The bill would preempt state laws that provide weaker privacy protections for this category of health data, while allowing states to maintain stronger protections.
Who benefits
Patients who have had or sought abortions, miscarriages, stillbirths, or ectopic pregnancy treatment — particularly those in states where abortion is restricted and who may face civil or criminal liability. Healthcare providers and their staff who could otherwise be compelled to produce patient records in legal proceedings. Health IT developers who gain clearer compliance guidance. Patients in all states who benefit from a uniform federal floor on this category of health data privacy.
Who is hurt
State prosecutors and law enforcement in states with abortion restrictions who would lose access to medical records as evidence in criminal or civil investigations. State legislatures whose laws compelling disclosure of such records would be preempted. Plaintiffs in civil cases who might seek such records as evidence. Health IT developers and covered entities who would bear compliance costs to implement data segregation systems. HHS, which would face a tight 90-day deadline to issue an interim final rule.
Supporters argue
Supporters argue that after Dobbs v. Jackson Women's Health Organization (2022) returned abortion regulation to states, patients' medical records have become potential evidence in criminal and civil proceedings, creating a chilling effect on patients seeking care for miscarriage, ectopic pregnancy, and other conditions that overlap with abortion. They contend that existing HIPAA rules contain exceptions that allow disclosure for law enforcement purposes, leaving a gap this bill would close, and that medical privacy is a foundational principle — patients must be able to seek care without fear that their records will be used against them.
Opponents argue
Opponents argue that the bill selectively carves out one category of health information from standard law enforcement access rules, effectively using federal privacy law to shield potential violations of state criminal statutes — an outcome that conflicts with the Supremacy Clause's general principle that federal law should not be weaponized to nullify valid state criminal enforcement. They contend that existing HIPAA law enforcement exceptions reflect a careful balance between privacy and public safety, and that removing those exceptions for a specific procedure creates an unequal legal framework that could impede legitimate investigations, including cases involving coerced abortions or medical malpractice.
Constitutional context
Congress's authority to regulate health data privacy rests on the Commerce Clause (Art. I, §8, cl. 3) and the Taxing and Spending Clause (Art. I, §8, cl. 1), the same foundations underlying HIPAA. The bill's broad federal preemption of state disclosure laws raises Supremacy Clause questions (Art. VI, cl. 2), and opponents may argue it conflicts with the anti-commandeering doctrine by effectively directing how states may conduct criminal investigations. Post-Loper Bright (2024), the HHS rulemaking required by this bill would face independent judicial scrutiny rather than deference.
Checks and balances
Congress would expand patient privacy protections and limit state law enforcement access; HHS gains rulemaking authority to implement the changes; federal courts would review HHS rules under the post-Loper Bright independent-judgment standard, and states may challenge the preemption provisions.
Historical precedent
HHS issued a final rule in April 2024 (under the Biden administration) strengthening HIPAA protections for reproductive health information in response to Dobbs; this bill would codify and expand similar protections at the statutory level, making them harder to reverse by future administrations.