Privacy Concerns for Abortion Providers in the Digital Age
As healthcare becomes increasingly digitized, concerns around privacy and patient confidentiality have become a growing issue. For abortion providers, this issue is particularly salient, as the contentious nature of the topic can make it difficult to assure patients that their information will be kept secure. Providers are calling for swift action from electronic medical record (EMR) companies, who have the power to create technical solutions to protect patient information. In the absence of these solutions, some are even pushing for new legislation to be put in place to better protect confidential health information.
The Health Information Exchange (HIE), which links patient data across thousands of healthcare providers, allows for efficient, coordinated, and high-quality medical care. However, such interconnectivity comes with a major trade-off: privacy. Patient privacy has always been a paramount value in abortion care, and the stakes have only increased after the recent Dobbs decision. Providers worry that their patients’ digital health information could fall into the wrong hands, potentially putting both themselves and their patients in danger. This article explores the privacy concerns for abortion providers in the digital age and what measures are being taken to help protect confidential health information.
How Privacy Has Been Treated in the Past
Although the United States Constitution does not explicitly discuss the right to privacy, the Supreme Court has historically interpreted various amendments to imply this right. This was most famously demonstrated in the case of Roe v. Wade, in which the decision was grounded in the due process clause of the 14th amendment, effectively wrapping a right to privacy around the female body and its capacity for pregnancy.
During the next 50 years, the internet arrived, followed by the electronic medical record and the HIE. Along with this increased connectivity and portability, the federal government enacted a number of laws to protect health information. However, HIPAA, the primary law governing health information privacy, is primarily aimed at facilitating the transfer of health records for billing and medical purposes, rather than specifically targeting privacy. As a result, many patients do not realize that under HIPAA, doctors can share health information with other entities, including insurance companies, health authorities, and law enforcement.
The Technical Catch with Abortion Records
HIPAA includes some privacy provisions designed to protect “sensitive” information, such as certain substance use treatment records. However, access to abortion records can be similarly restricted, but with a technical catch. These restrictions only apply to certain data, called “visit-specific” information, such as the text of the doctor’s note. Other data, called “patient-level” information, including ultrasound images, consent forms, and medications, remains detectable. For example, if a patient travels to California and is prescribed mifepristone and misoprostol, the standard regimen for medical abortion, those medications will appear on her record in her home state. This poses a significant risk to patient privacy when information is shared across the HIE.
Providers Advocate for Change
In the wake of Roe v. Wade and subsequent controversial rulings, providers are becoming increasingly concerned about the privacy of their patients’ digital health information. Although EMR companies could theoretically create technical solutions to protect information, many have been slow to implement them. As a result, providers are calling for more stringent legislation to be put in place to better protect confidential health information. This legislation would need to be focused specifically on digital health information and would need to hold EMR companies responsible for protecting patient privacy.
Expanding on Patient Privacy in the Digital Age
The digital age has revolutionized many aspects of our lives, including healthcare. With the increase in electronic medical records and health information exchanges, patient privacy has come under increased scrutiny. In the case of abortion providers, the high stakes and unfortunately divisive nature of the topic have made this concern even more pressing. The privacy of patients’ health information is an essential component of the doctor-patient relationship and is critical to ensuring that patients feel safe and secure when seeking medical care.
Despite some existing legal protections, such as HIPAA, many providers feel that these protections do not go far enough. They fear that, in the absence of additional measures, their patients’ digital health information could be exposed to entities such as insurance companies, health authorities, and law enforcement, putting both the provider and their patients at risk. This could have far-reaching implications, from the potential for loss of income for providers to the possibility of emotional and financial hardship for patients.
There is no easy solution to this complex issue, but one potential path forward is increasing awareness and advocacy around the need for greater patient privacy protections. Providers could work together to petition EMR companies to make changes to ensure patient confidentiality is preserved, while also advocating for legislation that would do more to protect digital health information. In addition, providers could work to educate their patients around how their data is shared and collected, including how HIPAA works and what information can be legally shared with other entities.
Conclusion
As the field of healthcare continues to evolve and the use of digital technology becomes more pervasive, concerns around patient privacy will continue to be an important issue. For abortion providers, the stakes are particularly high, given the sensitive and sometimes controversial nature of the services they provide. It is up to providers to take an active role in advocating for greater protections for their patients’ confidential health information, both through legal measures and through increased awareness and education around the issue. By working together, providers can help to ensure that patients feel safe and secure when seeking medical care, and that the sanctity of the doctor-patient relationship is preserved.
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Michele Gomez remembers the exact moment you noticed the problem. It was the fall of 2022. Gomez (who, like me, is a family physician and abortion provider in California) had recently performed a virtual medical abortion on a patient in Texas. The patient had flown to her mother’s house in California, where she had her appointment, she took her medications by mail and carried the pregnancy. Back in Texas, he became concerned about continued bleeding and went to the emergency room. The bleeding was self-limited; did not require significant medical interventions. Gomez found out about all this the next morning. “I sat down at my computer and saw your note from the ER. And I thought, ‘Oh God, if I can see his note, then they should be able to see my note”—a note that included prescriptions and instructions for medical abortion. For weeks, she waited for a call, fearing that the Texas police would come after her, or worse, come after her patient.
A vast system of digital networks, called the Health Information Exchange, or HIE, links patient data across thousands of health care providers across the country. With the click of a mouse, any physician can access a patient’s records from any other hospital or clinic where that patient received care, as long as both offices are connected to the same HIE. In a country without a national health system and hundreds of different electronic medical record (EMR) platforms, the HIE undoubtedly promotes efficient, coordinated, and high-quality medical care. But such interconnectivity comes with a major trade-off: privacy.
Patient privacy has always been a paramount value in abortion care, and the stakes have only increased after the Dobbs decision. I am among many concerned abortion providers calling for swift action from EMR companies, who have the power to create technical solutions to protect our patients’ digital health information. If these companies are not willing to build such protections, then the law should compel them to do so.
Although it is not enunciated in the Constitution, the Supreme Court has historically interpreted various amendments to imply a “right to privacy,” most famously in the case of Roe vs. Wade. By grounding the Roe decision in the due process clause of the 14th amendment, the Supreme Court effectively wrapped a right to privacy around the female body and its capacity for pregnancy.
During the next 50 years Roe, the internet arrived, then the electronic medical record and the HIE. Along with this increasing connectivity and portability, the federal government enacted a number of laws to protect health information, including the Privacy Act of 1974 and parts of the Health Information Portability and Accountability Act (HIPAA) of 1996. But HIPAA is No mainly a privacy law; its primary purpose is to facilitate the transfer of health records for billing and medical purposes. Many patients don’t realize that under HIPAA, doctors can (but are not always required to) share health information with other entities, including insurance companies, health authorities, and law enforcement.
HIPAA includes some privacy provisions to protect “sensitive” information. Certain substance use treatment records, for example, are viewable only to designated providers. Law enforcement are prohibited from accessing those records without a court order or written consent. Access to abortion records can be similarly restricted, but with a technical catch: These restrictions apply only to certain data, called “visit-specific” information, such as the text of the doctor’s note. Other data, called “patient-level” information, including ultrasound images, consent forms, and medications, remains detectable. If, for example, a patient travels to California and is prescribed mifepristone and misoprostol, the standard regimen for medical abortion, those medications will appear on her record in her home state. Any reasonable person can guess what happened on that visit, even without reading the note.
https://www.wired.com/story/the-trade-offs-for-privacy-in-a-post-dobbs-era/
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