What This Bill Does
This bill protects information about pregnancy termination or loss from being shared in legal cases without a person's permission. It updates federal health privacy rules to add special protections for this medical information and requires the government to make sure healthcare providers understand these new protections.
Who It Affects
Healthcare providers and their business partners who handle patient information, people seeking or who have received abortion care or pregnancy loss treatment, lawyers and insurance companies defending healthcare providers, and the general public.
Key Provisions
• Healthcare providers and their business partners cannot share pregnancy termination or loss information in any legal case (federal, state, local or tribal) without the person's written permission, with two exceptions: when defending against a lawsuit against the provider, or when investigating physical harm directly related to the pregnancy loss and the person cannot consent due to death or disability (Sec. 2(a)).
• The federal government must update regulations so healthcare providers can organize and protect pregnancy termination or loss information separately in their systems to follow these privacy rules (Sec. 2(b)(2)).
• The federal government must run an information campaign to tell healthcare providers, their business partners, and the public about these new privacy protections (Sec. 2(d)).
• The federal government must release temporary regulations within 90 days and final regulations within 270 days after this law passes (Sec. 2(e)).
What Changes
If this becomes law, healthcare providers will no longer be allowed to share pregnancy termination or loss information in court cases or government proceedings unless the person authorizes it in writing or one of two specific exceptions applies. The law overrides conflicting state laws but allows states to provide stronger privacy protections. Healthcare information technology developers must create systems that can separate and protect this sensitive information.
Important Definitions
"Pregnancy termination or loss information" means patient health records showing someone is seeking or received an abortion, miscarriage care, stillbirth care, ectopic pregnancy (a pregnancy growing outside the uterus) care, or related counseling, education, or referrals.
"Covered entity" and "business associate" mean healthcare providers and their contractors that handle patient information under federal privacy law.
"Secretary" means the Secretary of Health and Human Services.
Effective Date
Not specified in bill text
II
118TH CONGRESS
1ST SESSION
S. 323
To ensure the privacy of pregnancy termination or loss information under
the HIPAA privacy regulations and the HITECH Act.
IN THE SENATE OF THE UNITED STATES
FEBRUARY 9, 2023
Ms. HIRONO (for herself, Mr. BENNET, Mrs. GILLIBRAND, Ms. WARREN, Mr.
WYDEN, Mr. BROWN, Mrs. FEINSTEIN, Ms. CORTEZ MASTO, Ms.
DUCKWORTH, Mrs. MURRAY, and Mr. BOOKER) introduced the following
bill; which was read twice and referred to the Committee on Health, Edu-
cation, Labor, and Pensions
A BILL
To ensure the privacy of pregnancy termination or loss infor-
mation under the HIPAA privacy regulations and the
HITECH Act.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
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SECTION 1. SHORT TITLE.
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This Act may be cited as the ‘‘Secure Access for Es-
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sential Reproductive Health Act of 2023’’ or the ‘‘SAFER
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Health Act of 2023’’.
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•S 323 IS
SEC. 2. ENSURING THE PRIVACY OF PREGNANCY TERMI-
1
NATION OR LOSS INFORMATION UNDER THE
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HIPAA
PRIVACY
REGULATIONS
AND
THE
3
HITECH ACT.
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(a) IN GENERAL.—
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(1) PROHIBITION ON DISCLOSURE.—Subject to
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paragraph (2) and notwithstanding any regulations
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promulgated pursuant to section 264(c) of the
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Health Insurance Portability and Accountability Act
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of 1996 (42 U.S.C. 1320d–2 note; Public Law 104–
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191), a covered entity or a business associate of a
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covered entity may not disclose pregnancy termi-
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nation or loss information of an individual in Fed-
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eral, State, local, or Tribal proceedings, including
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civil, criminal, administrative, legislative, or other
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proceedings, without the valid authorization of the
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individual made in accordance with section 164.508
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of title 45, Code of Federal Regulations (or a suc-
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cessor regulation).
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(2) EXCEPTIONS.—Paragraph (1) shall not
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apply in the case of a disclosure of pregnancy termi-
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nation or loss information of an individual by a cov-
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ered entity or a business associate of a covered enti-
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ty if—
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(A) the pregnancy termination or loss in-
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formation is necessary for use in defense of a
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•S 323 IS
professional
liability
action
or
proceeding
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against the covered entity or business associate
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and the pregnancy termination or loss informa-
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tion is disclosed by—
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(i) the covered entity or business asso-
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ciate to the covered entity’s or business as-
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sociate’s attorney or professional liability
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insurer or insurer’s agent; or
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(ii) the authorized attorney of the cov-
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ered entity or business associate to a court
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or body hearing the action or proceeding;
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or
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(B)(i) the pregnancy termination or loss
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information is necessary to investigate physical
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harm to the individual by another person di-
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rectly relating to the loss or termination of the
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pregnancy; and
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(ii) the individual is unable to provide con-
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sent due to death or incapacity.
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(b) HITECH.—
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(1) PRIVACY EXCEPTION.—The Secretary shall
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revise section 171.202 of title 45, Code of Federal
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Regulations, to clarify that an entity’s practice of
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not fulfilling a request to access, exchange, or use
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electronic health information in order to comply with
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•S 323 IS
subsection (a) shall not be considered information
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blocking (as defined in section 171.103 of title 45,
2
Code of Federal Regulations (or a successor regula-
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tion)) if the information is pregnancy termination or
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loss information.
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(2) GREATER SECURITY.—The Secretary shall
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revise section 170.401 of title 45, Code of Federal
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Regulations, to require that as a condition of certifi-
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cation (as described in that section), a health IT de-
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veloper (as so described) shall implement practices
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that allow for the segregation of data relating to
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pregnancy termination or loss information to ensure
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compliance with subsection (a).
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(c) PREEMPTION; MODIFICATION OF STATE PRE-
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EMPTION EXCEPTIONS.—
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(1) PREEMPTION.—
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(A) IN GENERAL.—This section shall pre-
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empt any State law to the extent that the State
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law conflicts with or prevents application of this
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section.
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(B) EFFECT.—Nothing in subparagraph
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(A) shall be construed to preempt a State law
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to the extent that the State law provides great-
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er privacy protections for pregnancy termi-
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•S 323 IS
nation or loss information than provided under
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this section.
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(2) MODIFICATION.—The Secretary shall revise
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section 160.203 of title 45, Code of Federal Regula-
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tions, to ensure that no exception to the general pre-
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emption rule stated in that section applies with re-
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spect to pregnancy termination or loss information
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other than the exception described in paragraph
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(1)(B).
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(d) OUTREACH.—The Secretary shall conduct an out-
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reach campaign to ensure that covered entities, business
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associates of covered entities, the public, and affected indi-
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viduals are aware of the requirements of this section and
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any revisions to regulations made pursuant to this section.
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(e) PROCEDURE.—
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(1) INTERIM FINAL RULE.—Not later than 90
16
days after the date of enactment of this Act, the
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Secretary shall revise each regulation as required by
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this section through publication of an interim final
19
rule in the Federal Register.
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(2) FINAL
RULE.—Not later than 270 days
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after the date on which an interim final rule is pub-
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lished under paragraph (1), the Secretary, after pro-
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viding opportunity for public comment, shall publish
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•S 323 IS
in the Federal Register a final rule with such modi-
1
fications as the Secretary determines appropriate.
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(f) DEFINITIONS.—In this section:
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(1) HIPAA TERMS.—The terms ‘‘business asso-
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ciate’’, ‘‘covered entity’’, and ‘‘protected health infor-
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mation’’ have the meanings given those terms in sec-
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tion 160.103 of title 45, Code of Federal Regula-
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tions (or a successor regulation).
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(2) PREGNANCY TERMINATION OR LOSS INFOR-
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MATION.—The term ‘‘pregnancy termination or loss
10
information’’ means protected health information of
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an individual that relates to information that could
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reveal having or seeking an abortion or care for
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pregnancy loss, including, without limitation, any re-
14
quest for, or receipt of, items, services, education,
15
counseling, or referrals relating to the termination
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or loss of a pregnancy of the individual, including
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abortion, miscarriage, stillbirth, and ectopic preg-
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nancy.
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(3) SECRETARY.—The term ‘‘Secretary’’ means
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the Secretary of Health and Human Services.
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Æ
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