Chapter 7.C.2: Confidentiality, Reporting, and Contact Tracing

NOTES: REPORTING AND CONTACT TRACING (pp. 667-669)

New Note 5. Health Data Privacy after Dobbs.   The Supreme Court’s Dobbs decision opened the door to state restrictions on abortion, up to and including complete bans on the procedure.  These new state laws created significant concerns about the ability of states to access reproductive health information to support criminal prosecutions.  See, e.g., Rebecca Wexler & Aziz Z. Huq, Digital Privacy for Reproductive Choice in the Post-Roe Era, 98 N.Y.U. L. Rev. 555 (2023). The Biden Administration responded to concerns that medical records could be used to investigate women who traveled from states prohibiting abortion to jurisdictions permitting it by amending the HIPAA Privacy Rule to bar covered entities from disclosing protected health information for the purpose of investigating or imposing liability for lawful reproductive care.  HHS, HIPAA Privacy Rule to Support Reproductive Health Care Privacy, 89 Fed. Reg. 32,976 (April 26, 2024).  Judge Kacsmaryk, in the Northern District of Texas, struck down the special protections for reproductive health information on several grounds, including that HHS lacked clear congressional authorization to enact the rule under the major-questions doctrine.  Purl v. United States Department of Health and Human Services, 787 F. Supp. 3d 284 (N.D. Tex. 2025).