Biden HHS proposal would shield sex crimes, coerced abortions, child sterilization: critics

The Biden administration is pursuing the same type of "massive resistance" threatened by an earlier Democrat to frustrate school desegregation, but this time to protect abortion and potentially sterilizing treatments for gender-confused youth, according to a Trump administration official who enforced the health privacy regulations under review.

The Department of Health and Human Services received more than 11,000 comments on its notice of proposed rulemaking (NPRM) on the Health Insurance Portability and Accountability Act and "protected health information" before it closed Friday, only 65 of which are currently accessible to the public.

The proposed rulemaking, if approved, would change HIPAA's definitions of "person" to exclude human beings before birth,  "reproductive health care" to "broadly" apply to the reproductive system, and "public health" to exclude use and disclosure of PHI for investigations or proceedings related to reproductive healthcare.

The NPRM cites the 2022 Supreme Court decision in Dobbs, which returned abortion regulation to the states, as its primary motivation. While it does not mention so-called gender affirming care, the proposal appears broad enough to encompass puberty blockers, cross-sex hormones and genital removal for transgender and nonbinary patients.

It is likely to "inhibit states’ ability to investigate or enforce abortion laws or laws prohibiting minors from accessing gender transition drugs and surgeries," according to an analysis by Ethics and Public Policy Center fellow Rachel Morrison.

The NPRM would require health plans, insurance companies and most healthcare providers to decide whether a given action related to PHI is lawful under the proposal, said Morrison, a former Equal Employment Opportunity Commission attorney who specializes in HHS.

"Covered entities must navigate this confusion knowing that HHS … is openly hostile" to states that seek to protect fetal life and shield minors from gender-affirming care, EPPC's formal comment states. The "considerable civil, criminal and professional consequences that come with adverse HIPAA determination" will chill cooperation with "state activities that stem from their traditional police powers."

"It took me hours to pore through" the "absolutely impenetrable" 48-page NPRM to determine its meaning, Roger Severino, former HHS director of the Office for Civil Rights under President Trump and HIPAA regulator, told Just the News.

"Even the best of lawyers would have an incredibly harm time" parsing the proposal, which seems to be "purposely meant to confuse and misdirect" in violation of the Administrative Procedure Act, he said. "They are opening up a can of worms that will explode in a way they both can't predict and can," given the very broad definition of "reproductive health care."

The NPRM also flies in the face of statutes such as the Genetic Information Nondiscrimination Act, which explicitly protects fetuses, Severino said. "You can't suddenly redefine human beings out of existence in order to further abortion politics."

In his comment on behalf of the Heritage Foundation, Severino warned HHS that its proposal would do "violence to federalism and the rule of law." He compared Secretary Xavier Becerra's response to Dobbs — to use "every lever we have" to protect abortion — to the pledge by Senator Harry Byrd (D-Va.) on behalf of southern states to ignore Brown v. Board of Education, another "landmark civil rights precedent."

Even if HHS had statutory authority to limit state investigations into "the practice of experimental gender medicine on minors," it was not "hidden away in an otherwise anodyne provision" of HIPAA, anti-woke medical advocacy group Do No Harm told the agency. Its failure to conduct an analysis of the NPRM's effect on such investigations, by itself, renders the proposal arbitrary and capricious, the comment states.

States are responding reasonably to the spike in gender dysphoria officially captured by insurance claims – about 20% a year from 2017 and 2020, and an 80% jump from 2020 to 2021, Do No Harm said. It pointed to a study in The Journal of Endocrinology and Metabolism estimating a 30% de-transition rate based on U.S. Military Healthcare System records.

More than two dozen members of Congress including GOP Sens. Ted Cruz, Texas; J.D. Vance, Ohio; Mike Lee, Utah;  and Roger Marshall, Mississippi, recently signed a letter to HHS circulated by Sen. Cindy Hyde-Smith, of Mississippi, and Rep. Chris Smith, of New Jersey, each Republicans.

The NPRM ignores statutes that recognize "the unborn child explicitly," including the Unborn Victims of Violence Act Act, Emergency Medical Treatment and Active Labor Act (EMTALA) and National Childhood Vaccine Injury Act, as well as HHS's own regulations governing the Child Health Insurance Program, they said.

It protects "abusers instead of victims" of sex crimes by defining the illicit transportation of "minors or victims of sexual abuse to undergo abortions" as reproductive healthcare and restricting PHI disclosure that is "based on the administration of rape kits and medical treatment for victims of sexual assault," they said.

Those who perform or facilitate abortion, by contrast, are allowed to disclose abortion-related PHI to defend themselves against liability, exposing the pretext of "insulating the abortion industry from accountability," lawmakers said.

The NPRM "places physicians in an impossible position," the American Association of Pro-Life Obstetricians and Gynecologists' comment says. They are legally required to report "coerced abortion" in every state and also pregnant adolescents who may be rape or incest victims in some states, but "will now be at risk of being accused of a HIPAA violation" for supplying that PHI, endangering their employment, licensure and board certification.

The proposal would deprive states of abortion-related data relevant to "legitimate state public health interests" and "critical evidence relevant to the investigation and successful prosecution of sex crimes," including those that result in pregnancy, the Alliance Defending Freedom's comment says.

"HHS has no authority for its efforts to turn practically all hospitals into on-demand abortion clinics," according to ADF, citing the legal injunction against the agency's attempt to condition Medicaid funds on provision of abortion in emergency rooms. The agency's supposed authority for the mandate, EMTALA, "says nothing about abortions" and "explicitly requires stabilizing the 'unborn child.'"

EPPC posted similar comments from other groups, including the United States Conference of Catholic Bishops, Ethics & Religious Liberty Commission and Christian Medical & Dental Associations.