California Adopts Comprehensive Laws to Protect Privacy Rights in Response to Dobbs Decision
This Bulletin is brought to you by AHLA’s Health Information and Technology Practice Group.
- December 06, 2022
- Leeann Habte , Best Best & Krieger
- Katherine Ullrich , Best Best & Krieger
The implications of the Supreme Court’s decision in Dobbs[1] are far-reaching. Although some states simply introduced abortion bans in response to the decision, others pushed farther to criminalize abortion and/or extend civil liability to both individuals who travel to other states where abortion is legal and those who help them or provide abortion-related services to them. Strong privacy laws are fundamental to limiting the cross-jurisdictional impact of these laws, and California has exercised significant leadership in protecting women’s reproductive and privacy rights through comprehensive legislation.
In response to the Dobbs’ decision, the California Legislature acted promptly and decisively to support those who provide, support, or access reproductive health care in California. Shortly after Dobbs was decided, the California Legislature enacted a number of laws to protect the rights of those who seek or obtain abortions and those who provide abortion-related services in California. In November, California voters took the further step of approving (via a ballot measure) an amendment to the California Constitution to include an individual’s fundamental rights to choose to have an abortion and to choose or refuse contraceptives.[2]
Protection from Civil Liability or Criminal Enforcement
In September 2022, Governor Gavin Newson signed several bills into law. Assembly Bill 2223 (AB 2223) protects individuals who experience pregnancy loss[3] in California. Specifically, AB 2223 prohibits a person from being subject to civil or criminal liability based on their actions or omissions with respect to their pregnancy or on their actions to aid or assist a pregnant person who is exercising their reproductive rights. The bill also authorizes a party whose rights are protected by the Reproductive Privacy Act (the Act) to bring a civil action against an offending state actor or another party if the person’s rights under the Act are violated.
Assembly Bill 1242 (AB 1242) prohibits state and local law enforcement agencies and officers from arresting or participating in the arrest of someone for performing, obtaining, or helping someone obtain a legal abortion in California.[4] It prohibits state and local agencies from cooperating with or providing information to any individual, agency, or department from another state about a legal abortion in California. Further, sharing such information with federal law enforcement agencies is also not permitted, unless required by federal law.[5]
Expanded Privacy Protections
To prevent the disclosure of information resulting from subpoenas from other states that seek to interfere with an individual’s right to seek an abortion in California, California also enacted Assembly Bill 2091 (AB 2091) in September. AB 2091 prohibits:
- Compelling a person to identify or provide information that would identify or is related to an individual who has sought or obtained an abortion in a legal proceeding.[6] This prohibition applies if the information is requested based on another state’s laws that interfere with a person’s right to choose or obtain an abortion or a foreign penal civil action.[7]
- The release of medical information by a provider of health care, a health care service plan, a contractor, or an employer related to an individual seeking or obtaining an abortion in response to a subpoena or a request. This restriction applies if the subpoena or request is based on either (1) another state’s laws that interfere with a person’s rights under the Act[8] or (2) a civil action authorized by laws of another state.[9] Similarly, such entities are prohibited from releasing medical information that would identify an individual or that is related to an individual seeking or obtaining an abortion to law enforcement, for these same purposes unless the release is pursuant to a non-prohibited subpoena
- The issuance of a subpoena by the clerk of the superior court in the county where discovery is sought if the submitted foreign subpoena relates to a civil action authorized by laws of another state and the submitted foreign subpoena would require disclosure of information related to sensitive services.[10]
- Disclosure of identifying medical information by prison staff related to an incarcerated person’s right to seek and obtain an abortion if the information is being requested based on another state’s law that interferes with a person’s rights to choose or obtain an abortion or a civil action authorized by laws of another state.[11]
Further, AB 2091 allows the Insurance Commissioner to assess a civil penalty against an insurer that has disclosed an insured’s confidential information (including information pertaining to sensitive services[12]) in violation of Section 791.29 of the Insurance Code. Penalties may range up to $5,000 per violation and up to $10,000 per violation if such violation was willful.[13]
Conclusion
These laws have taken significant strides to protect both individuals seeking abortion and abortion-related care as well as providers in California from the effect of out-of-state laws. However, there remain gaps in the privacy protections afforded by these laws. In particular, the risks associated with routine information sharing in health care treatment contexts, such as through health information exchanges, has not been fully addressed. Such exchanges are not prohibited by federal health privacy laws, such as the Health Insurance Portability and Accountability Act (HIPAA). Unless states implement consent requirements for the disclosure of abortion-related information for treatment, payment, and health care operations, routine information sharing may result in unintended consequences for individuals who seek or obtain abortions across state lines.
[1] Dobbs v. Jackson Women’s Health Org 42 U.S. 2228 (2022).
[2] California Secretary of State Official Voter Guide Information, California General Election November 8, 2022, Proposition 1, https://voterguide.sos.ca.gov/propositions/1/.
[3] Under AB. 2223, pregnancy loss includes miscarriage, stillbirth, abortion, or perinatal death due to causes that occurred in utero.
[4] Cal. Penal Code, § 13778.2, subd. (a).
[5] Cal. Penal Code, § 13778.2, subd. (b).
[6] Legal proceedings include a state, county, city, or other local criminal, administrative, legislative, or other proceeding.
[7] Cal. Health & Safety Code § 123466(b).
[8] Cal. Health & Safety Code, Article 2.5 (commencing with § 123460) of Chapter 2 of Part 2 of Division 106.
[9] Cal. Civ. Code § 56.108.
[10] Cal. Code of Civ. Proc. § 2029.300(e).
[11] Cal. Penal Code § 3408(r).
[12] “Sensitive services” include all services related to sexual and reproductive health. Cal. Ins. Code § 791.02(ac).
[13] Cal. Ins. Code § 791.29(f).