Amid a post-Roe political and healthcare landscape, University of Connecticut School of Law Professor Carleen Zubrzycki’s is considering the repercussions of misleadingly naming states abortion “safe havens” without addressing the presence of pre-existing inter-state medical records in her recently published draft, “Abortion’s Interoperability Trap: How the Law of Medical Records Will Facilitate Interstate Persecution of Contested Medical Procedures, and What to Do about It” (June 27, 2022). The piece will be featured in a forthcoming Yale Law Journal Forum.
Read the abstract for more information below:
There’s a gaping hole in blue states’ efforts to create abortion “safe havens” for the new post-Roe world. Medical care procured out-of-state increasingly leaves a digital trail that will easily make its way back to patients’ home states. In the context of abortion—and other politically controversial forms of care, like gender-affirming treatments—, this means that cutting-edge legislative protections for medical records do not go far enough. Anticipating the fall of Roe, legislatures have begun to bar in-state providers from directly handing over records for use in out-of-state lawsuits or prosecutions. But these laws fail to recognize that, thanks to increasing interoperability and new regulations designed to improve the flow of medical information, patient records are now widely shared across state lines in the ordinary course of business—and nothing will protect those records once in the hands of out-of-state providers. To wit: Under current law, a Connecticut practice that shared records of a patient’s abortion with a doctor in Louisiana, even over the patient’s objection or knowing that the record would likely be used to persecute the patient, would not be violating any privacy law—and a doctor who withheld the records, in many situations, would be! Lawmakers must act now to address this “interoperability trap.” And even if they don’t, clinics and providers should prepare to adopt policies well beyond what is legally required to protect their patients’ records.
Read the complete draft here. Comments should be directed to Professor Zubrzycki.