Post-Dobbs, the fear is visceral. What was once personal, private, and one hoped, protected within the presumptively confidential space of the doctor-patient relationship, feels exposed. In response to all this fear, the Internet exploded – delete your period tracker; use encrypted apps; don’t take a pregnancy test. The Biden administration too, chimed in, just days after the Supreme Court’s decision, issuing guidance seeking to reassure both doctors and patients that the federal Health Privacy Rule (HIPAA) was robust and that reproductive health information would remain private. Given the history of women being prosecuted for their reproductive choices and the enormous holes in HIPAA that have long allowed prosecutors to rely on healthcare information as the basis for criminal charges, these assurances rang hollow (as detailed at length in our forthcoming article, HIPAA v. Dobbs). From a health care policy perspective, what is different now is not what might happen. All of this has been happening for decades. The only difference today is the sheer number of people affected and paying attention.
By Katie Gu
The past may hold important lessons for our uncertain future of health privacy for patients, physicians, and hospitals in the face of abortion subpoenas post-Dobbs.
In returning the legality of abortion back to states, the Supreme Court’s decision has paved the path towards greater surveillance of sensitive health data contained in patient medical records. This stark increase in privacy risks for individuals seeking reproductive care resembles the shifts in patient privacy protections nearly twenty years ago following the Partial-Birth Abortion Ban Act (PBAB).
By Myrisha S. Lewis
Despite religious and ethical objections, assisted reproductive technology (ART), including in vitro fertilization and egg freezing, manages to flourish in the United States, with some states and companies even creating regimes for its insurance coverage. However, reproductive genetic innovation — a term I use to refer to the combination of assisted reproduction with genetic modification or substitution — has yet to receive the same acceptance. Examples of reproductive genetic innovation include mitochondrial transfer, cytoplasmic transfer, and germline gene editing.
Moreover, while many scientists, regulators, and members of the public have called for societal discourse or consensus related to individual reproductive genetic innovation techniques, these calls rarely include an explanation as to how these discourses would be conducted. In a recent article, Normalizing Reproductive Genetic Innovation, I offer four potential avenues for structuring a societal discourse in the U.S. on the topic.
By Katie Gu
The American Medical Association (AMA) recently adopted new policies aimed at protecting access to reproductive health care and reducing government interference in medical practice. As the nation’s most prominent professional medical association, the AMA’s unified stance brings a stronger physician-led voice in reproductive health care advocacy in the aftermath of Dobbs v. Jackson Women’s Health Care Organization.
This post is an adaptation of an article published in the Harvard Social Impact Review.
By Allison M. Whelan
On June 24, 2022, the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, overruling almost fifty years of precedent established by Roe v. Wade and reaffirmed by Planned Parenthood v. Casey. The tragic consequences of Dobbs are many, and all require urgent attention.
Post-Dobbs, states have complete control over the regulation of abortion, including medication abortion. Now more than ever, a person’s access to abortion and other essential reproductive health care services depends on their state of residence and whether they have the means to travel to a state that protects access to abortion care. As a result, the question of whether states can restrict or ban pharmaceuticals approved by the U.S. Food and Drug Administration (FDA) is now top of mind for lawyers, scholars, policymakers, and the public
The consequences that result from state bans and restrictions on medication abortion reverberate across the U.S. healthcare system, representing just one example of “healthcare federalism” — the division of power between the federal and state governments in the regulation of health care.
By Camila Gianella
On August 3, Kansas voters spurned the recent decision in Dobbs v. Jackson Women’s Health Organization by rejecting a proposed constitutional amendment that, in line with the ruling, aimed to ban abortion in the state.
What happened in Kansas shows the central role of social and political mobilization in securing abortion rights. In Kansas, Dobbs caused an unprecedented mobilization of women voters.
On the other hand, without such mobilization, access to abortion can suffer – even if the law protects sexual and reproductive health and rights (SRHR). In the case of Peru, my country, which is often cited as an example of the internationalization of SRHR norms through supranational litigation, internationally recognized legal victories have often fallen short of the high expectations they created. Despite the success of international bodies, abortion rights in Peru have not been expanded. Further, there are attempts at the legislative level to advance a total ban on abortion.
By Katie Gu
In the post-Dobbs fight to safeguard reproductive healthcare, a new spotlight has been placed on two existing federal laws: the Health Insurance Portability and Accountability Act (HIPAA) and the Emergency Medical Treatment and Active Labor Act (EMTALA).
Guidance documents issued over the summer by federal agencies emphasize how these laws can be used to protect reproductive health privacy and access.
By Aparajita Lath
The Supreme Court of India recently ruled that all women, whether married or not, have equal rights to access abortion up to 24 weeks of gestation, in compliance with the provisions of the Medical Termination of Pregnancy Act, 1971 (MTP Act).
Prior to this ruling, the MTP Act was understood to permit abortions up to 20 weeks (on the advice of one medical practitioner), and up to 24 weeks in certain specific cases, e.g., minors, pregnancies resulting from rape, women experiencing changes in marital status, women with certain mental / physical disabilities, fetal malformation, or pregnancies in emergency situations. The Supreme Court has now expanded the law to ensure access to abortion for all women, regardless of marital status, up to 24 weeks gestation.
By James G. Hodge, Jr., Jennifer Piatt, Erica N. White, Summer Ghaith, Madisyn Puchebner, and C. McKenna Sauer
Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to abortion, laws went into effect in multiple states that restrict when abortions may be provided, including during potentially life-threatening emergencies.
To the extent highly restrictive, amorphous, and indeterminate abortion bans contravene physician implementation of life-saving interventions for pregnant patients — and thus infringe upon the Fourteenth Amendment’s protection of the right to life — they are unconstitutional.
By Katie Gu
An April 2021 data privacy bill sponsored by Senator Ron Wyden (D-OR) has taken on new urgency in the post-Roe Digital Age.
The bipartisan bill, The Fourth Amendment Is Not For Sale Act, would close the current legal loophole through which the FBI, Department of Homeland Security, Department of Defense, Customs and Border Protection, Immigration and Customs Enforcement, and the Internal Revenue Service, have repeatedly purchased Americans’ personal and consumer information from data brokers.
In the wake of the recent Dobbs v. Jackson Women’s Health Organization decision, this bill may play an important role in protecting reproductive health data against government overreach and new forms of surveillance technologies.