White House moves to protect abortion patients’ records after developments in Washington, Idaho
WASHINGTON – The White House on Wednesday proposed a new federal rule that would block law enforcement and state officials from accessing the medical records of patients who leave their home states to get an abortion.
The move came partly in response to recent developments in Idaho and Eastern Washington, Vice President Kamala Harris and cabinet members acknowledged in remarks at the White House. On Friday, a federal judge in Spokane issued a ruling that would preserve access to a medication used to terminate pregnancies shortly after a ruling by another federal judge in Texas to ban the drug, called mifepristone.
On April 4, Idaho Gov. Brad Little signed a law that makes it a felony to help a minor travel to another state for an abortion without parental consent. The procedure has been banned in Idaho since August, following the U.S. Supreme Court overturning a half-century-old precedent that guaranteed the right to terminate a pregnancy, while allowing some restrictions.
Since the Supreme Court’s ruling in June, Harris said, “Women in America in particular have been in a state of fear about what this means for them, what this means for the people they love.”
The proposed rule, which will be open to public comment for 30 days, would bar health care providers from giving a patient’s records to authorities who are investigating an abortion in a state where the procedure is legal, such as Washington. Currently, federal privacy laws let a court order the release of medical records as part of an investigation in states like Idaho where abortion is now banned.
The Texas ruling by Judge Matthew Kacsmaryk, who was appointed by former President Donald Trump, came after an anti abortion group challenged the Food and Drug Administration’s approval of mifepristone in 2000. By filing the lawsuit in the city of Amarillo, the group was assured it would be heard by Kacsmaryk, the sole federal district court judge in the area and a known opponent of abortion rights.
“We have, in effect, a situation where politicians and politics have driven lawyers to go to a court of law,” Harris said, “where a judge who is not a medical professional is making a decision to undo the ruling – over 20 years ago – of the FDA that declared a specific medication safe and effective for the American people.”
In response to that case, Washington Attorney General Bob Ferguson and other Democratic attorneys general filed a federal lawsuit in the Eastern District of Washington in February. About 20 minutes after Kacsmaryk’s ruling in Texas, Spokane-based Judge Thomas Rice, who was appointed by former President Barack Obama, ordered the FDA to preserve the “status quo” and keep mifepristone available in 17 states, including Washington, and in the District of Columbia.
The Justice Department appealed the Texas ruling on Monday, asking the 5th Circuit Court of Appeals to review the case and setting up a potential showdown between the conflicting rulings in the Supreme Court. Kacsmaryk stayed his decision for one week, setting a deadline of Friday for a higher court to act before it goes into effect.
Sitting next to Harris, Attorney General Merrick Garland told reporters the Justice Department would continue to “vigilantly monitor state laws and enforcement actions that threaten to impinge on federal protections of reproductive rights.”
“For example, we are continuing to litigate our challenge to Idaho’s abortion ban,” Garland said, adding that “women who reside in states that have banned access to comprehensive reproductive care must remain free to travel to states in which that care is lawful.”
In addition to the proposed rule, the Biden administration issued guidance through the Federal Communications Commission, the Department of Education and the Department of Health and Human Services aimed at protecting the privacy of medical information.
Northwest lawmakers have weighed in since Friday’s dueling court rulings, with congressional Democrats and Republicans filing amicus briefs with the 5th Circuit on Tuesday. The 240 Democrats who oppose the Texas ruling include Sens. Patty Murray and Maria Cantwell of Washington, while the 69 Republicans who support the decision include Rep. Russ Fulcher and Sens. Mike Crapo and Jim Risch of Idaho.
“This is a critical step to help patients across our country get the reproductive care they need with the knowledge that their privacy will be protected,” Murray said of the White House’s proposed rule in a statement Wednesday. “The bottom line is: no patient should have to fear their personal health care decisions could be used against them, and no doctor should have to fear threats and investigations for providing legal care to their patients.”
Rep. Cathy McMorris Rodgers, R-Spokane, responded to the judges’ conflicting rulings in a statement Monday.
“We must remain committed to the fundamental principle that every life is worth living,” she said in a joint statement issued with Rep. Brett Guthrie, R-Ky. “The FDA‘s first and most important job is to ensure the safety of the American people. As the courts review the cases at hand, we must not lose sight of this directive.”
If the 5th Circuit does not choose to hear the appeal by the time Kacsmaryk’s ruling goes into effect at the end of the week, the FDA could ask the Supreme Court to resolve the conflicting orders from the judges in Texas and Washington.