AG Cameron wants ability to search medical records of patients who get out of state abortions

Kentucky Attorney General Daniel Cameron wants to retain the option to access the medical information of Kentuckians who leave the state for reproductive health care services, such as abortion and gender-affirming health care.

Cameron joined 18 Republican state attorneys general in co-signing a June 16 letter to the U.S. Department of Health and Human Services, arguing that its rule change proposal to shield this patient information from officials in states that have banned or criminalized abortion and gender-affirming health care would “unlawfully interfere with states’ authority to enforce their laws and does not serve any legitimate need.”

The letter asks HHS Secretary Xavier Becerra to halt a proposed HIPAA privacy rule change, which was floated after federal abortion protections were overturned last year as a way to “better protect sensitive information related to reproductive health care and bolster patient-provider confidentiality,” according to HHS.

The rule change would make it harder for officials in states that have restricted access to reproductive health care, like abortion, to obtain patient medical information if it’s for the purpose of investigating a civil or criminal law violation. The type of reproductive health care shielded by the HHS rule change includes pregnancy and post-natal care, abortion, miscarriage management, contraception, and the gamut of gender-affirming health care options, regardless of the patient’s age.

For example, if a pregnant person in Kentucky, a state where abortion is illegal, traveled to get an abortion in Illinois, a state where abortion is legal, the proposed federal rule change would block the disclosure of their protected health information to a Kentucky state official, like Cameron, should he go seeking it as part of an investigation into a violation of Kentucky law.

“This proposed rule would thus curtail the ability of state officials to obtain evidence of potential violations of state laws,” the AGs wrote, adding that the proposed policy change “has deep flaws and should be withdrawn.”

Cameron — who is running for governor this year against incumbent Democrat Andy Beshear — and other co-signers accused the Biden Administration of pushing a “false narrative that states are seeking to treat pregnant women as criminals or punish medical personnel who provide life-saving care. Based on this lie, the administration has sought to wrest control over abortion back from the people in defiance of the Constitution and Dobbs,” the AGs said.

Dobbs v. Jackson Women’s Health Organization is the U.S. Supreme Court case that became precedent over Roe v. Wade in 2022 and overturned half a century of federal abortion protections.

Kentucky’s trigger law banning abortion except to save a pregnant person’s life took immediate effect after Roe fell last June. That law, coupled with a ban on abortions after six weeks of pregnancy (a fetal heartbeat law), means pregnancy termination of any kind has been largely inaccessible in Kentucky for the last year. The trigger law’s vague wording and lack of clear exceptions have pushed health care providers to send pregnant patients who require medically-necessary terminations to find care out of state, as reported by the Herald-Leader.

The commonwealth this year also outlawed gender-affirming medical care for transgender youth. Gender-affirming care is a broadly-applied term that, in this context, outlaws the prescription of hormones, puberty blockers and gender-reassignment surgery for trans individuals under age 18.

In a statement announcing that he had signed the letter last month, Cameron said the proposed rule change would “incentivize health care providers to break state laws on everything from protecting unborn life, to gender-altering surgeries.” While HIPAA “authorizes HHS to set standards for protecting privacy . . . (it) does not empower HHS to shield from authorities evidence of legal wrongdoing based on a claimed connection to ‘reproductive health care,’” Cameron said.

Among the arguments Cameron helps to make is that HHS’s own policy recognizes that “privacy interests” must be balanced against the public’s interest to use identifiable health information for “vital public and private purposes.” According to the letter, “the privacy rule thus sets standards for using and disclosing (protected health information) in certain circumstances without an individual’s authorization.”

Circumstances cited in the letter that warrant such a scenario include for a court order, subpoena, discovery request, to a “health oversight agency for oversight activities authorized by law,” as well as for criminal and civil investigations.

The same day Cameron and other Republican AGs publicly penned their opposition to HHS, all 23 Democratic state attorneys general penned a letter supporting the federal rule change. It acknowledged how the growing network of state laws criminalizing abortion “discourage pregnant people from utilizing health care and endanger the patient-provider relationship. Given this rapidly-changing backdrop of extreme legal risks and increasing uncertainty, it is critical that additional guardrails be added to the privacy rule to protect against the disclosure of reproductive health information,” they wrote.

Angela Cooper with the American Civil Liberties Union of Kentucky criticized Cameron’s decision to sign the letter on Tuesday, calling it “another in a long line of actions indicating (his) unwillingness to stay out of Kentuckians’ private medical decisions.”

The government “has no place inserting themselves between families and their doctors, whether the issue is reproductive care or medically necessary care for transgender youth,” Cooper said.

The Kentucky Democratic Party was also quick to chide Cameron.

“What reason could Daniel Cameron have for wanting access to the private medical records of patients, except to be able to prosecute those patients?” said Kentucky Democratic Party spokesperson Anna Breedlove.

“State officials should not be able to rifle through patient’s medical records,” Breedlove said. “What’s next, getting a permission slip signed by Cameron to get access to reproductive health care?”