OPINION: Dispelling abortion prosecution myths and other misconceptions

Given both the number and intensity of accusations leveled at me over the last week, I felt it prudent to set the record straight as to my motivations and reasons. On June 16, I — along with 19 other state attorneys general — sent a letter to the U.S. Department of Health & Human Services providing feedback on their proposed rule change regarding protected health information.

The letter advocated for keeping in place a rule that has successfully protected personal health information for more than two decades. I know, pretty sinister, right? This rule, which applies equally to all health care records, was implemented under Bill Clinton’s administration. It strikes the appropriate balance between safeguarding the privacy of individual health information, while permitting disclosure of this information in limited circumstances needed to protect public health, safety and welfare. The stated goal of the HIPAA privacy rule when it took effect more than 20 years ago was “to assure that individuals’ health information is properly protected, while allowing the flow of health information needed to provide and promote high quality health care and protect the public’s health and wellbeing.”

The current rule allows limited and controlled access to this information by law enforcement “for a law enforcement purpose” and by public health authority “for purposes of preventing or controlling disease, injury, or disability.” For example, law enforcement could access the reproductive health care records of a minor when they believe a sexual assault of a minor has taken place and that those records will help prove that a crime has been committed. Or public health officials could request health records in order to try to stem the harm to the public due to a particularly bad outbreak of a sexually transmitted infection. Now, under the new federal rule, the ability of law enforcement and public health officials to do this is questionable as the new rule incentivizes health care providers not to disclose.

I fully acknowledge that others may disagree with my assessment of the proposed rule; however, the fearmongering prevalent in most reporting, opinion pieces and comments on this subject are based on misstatements of the law. Let me address the main allegations:

Allegation 1: Keeping the rule the same would allow other states to prosecute people from their states who travel to Alaska to get an abortion. This is absolutely false. Alaska law is perfectly clear on abortion — it is legal. State A can’t prosecute a person for doing something in State B that is legal in State B. This is why you don’t get prosecuted for illegal gambling in Alaska after returning from a trip to Las Vegas.

Allegation 2: The Attorney General just wants to know about my reproductive health care or medical care related to reproductive organs. First, I can assure you that nothing is further from the truth. And second, for you cynics out there who don’t believe my first assurance, the current HIPAA rule prevents me from doing that.

Allegation 3: The Attorney General joined the letter because he personally opposes abortions. No, I joined because the current privacy rule has worked well for more than 20 years; the new rule could hinder the efforts of public health officials as well as law enforcement investigations into crimes such as sexual abuse of a minor or sex trafficking; and the new rule, by their own admission, is motivated to seek to thwart the U.S. Supreme Court’s decision in Dobbs v. Jackson, which leaves abortion-related policy decisions to the individual states (i.e. the new rule represents federal overreach into issues that are clearly left to the states).

I understand the heightened emotions that accompany any discussion that touches on reproductive rights. It is my sincere hope that this opinion piece will help dispel some of the angst some individuals feel regarding the June 16 letter and further the public’s understanding of why I chose to join the comment letter.

Treg Taylor became the Alaska attorney general in 2021. He resides in Anchorage with his wife, Jodi, and has six children.

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