By Casey Smith
Indiana Capital Chronicle
July 20, 2023
Indiana Attorney General Todd Rokita is continuing his fight on culture wars issues, this time on reproductive health care records and workplace diversity.
In a letter he signed onto last month, Rokita opposed a draft federal privacy rule that would block state officials from accessing information on residents’ reproductive health care services — including abortions — obtained outside the state.
Rokita joined 18 other Republican attorneys general who signed onto the June 16 letter, opposing the change proposed in April by the U.S. Department of Health and Human Services (HHS) to amend HIPAA, the federal law restricting release of medical information.
The rule change would block state authorities — like the attorney general — from obtaining protected information about reproductive health care services obtained lawfully out of state “for criminal, civil, or administrative investigations or proceedings” against those individuals or regulated entities.
That protected patient information on reproductive health care services would include those related to pregnancy, contraception, fertility, prenatal care, miscarriage management and abortion.
Indiana AG says state laws are ‘at risk’
Rokita said in a June 20 tweet that HHS’s new proposed rule “carves out” reproductive health care “from important exceptions” to HIPAA,” which “puts many of Indiana’s laws at risk.” He did not say specifically which exceptions, or what laws could be in jeopardy, however.
His office also did not comment further on the attorney general’s current authority to obtain out-of-state medical records.
In the proposed rule change, HHS Secretary Xavier Becerra said that after the U.S. Supreme Court’s Dobbs decision last year — which allowed and prompted many states like Indiana to ban most abortions — the federal department has fielded concerns about “instituted or threatened” investigations of health care information in states where abortion remains legal.
He said that “is likely to chill individuals’ willingness to seek lawful treatment or to provide full information to their health care providers when obtaining that treatment.”
But the letter signed by Rokita and his colleagues accuses President Joe Biden’s administration of seeking to “wrest control over abortion back from the people in defiance of the Constitution and Dobbs,” based on “a false narrative that States are seeking to treat pregnant women as criminals or punish medical personnel who provide lifesaving care.”
The letter, led by Mississippi Attorney General Lynn Fitch, argues the rule change would “upset the careful, decades-old balance” of safeguarding patient privacy with “permitting disclosure of information to state authorities to protect public health, safety, and welfare,” along with unlawfully interfering with states’ authority to enforce their laws.
The GOP attorneys general additionally said the broad definition of reproductive health care in the rule change could enable the Biden administration “to advance radical transgender-policy goals” and “obstruct state laws concerning experimental gender-transition procedures for minors (such as puberty blockers, hormone therapy, and surgical interventions).”
A split ruling from the Indiana Supreme Court late last month will likely put the state’s near-total abortion ban back into effect, despite an earlier injunction. The prohibition was enacted by the Indiana General Assembly last year.
During the 2023 legislative session, state lawmakers additionally passed a controversial medical care ban for transgender minors that no longer allows parents to authorize gender-affirming care for their children, including puberty blockers, hormone replacement therapy or surgical interventions.
The law took partial effect earlier this month — only banning the surgical procedures — while a lawsuit plays out in federal court.
Democrats support the changes
Meanwhile, all 23 Democratic state attorneys general signed onto a separate letter in June in support of the proposed HHS patient privacy protections, maintaining that the Dobbs decision “has created a climate of uncertainty and fear in the provision of reproductive health care throughout the country.”
They added that “rapid technological advances have transformed how health care providers and individuals collect and store their personal health information, including reproductive health data.” But existing privacy protections, they continued, “have not kept up with these changes and fail to contemplate circumstances in which basic health care is subject to civil liability and criminal penalties.”
The Democrats’ letter also calls on the HHS to clarify that the privacy protections would extend to include information on gender-affirming care.
Attorneys general sound off against ‘race-based initiatives’
Last week, Rokita joined another letter penned by GOP attorneys general warning the nation’s largest companies — many of which have diversity and equity programs — they could face legal action for using race-based policies.
The July 13 letter, Rokita and a coalition of 12 other attorneys general put Fortune 100 companies on notice that they could be hit with legal action for violating the U.S. Supreme Court’s June ruling in Students for Fair Admissions v. President & Fellows of Harvard College, which put an end to using race as a basis for admitting students to college. The attorneys general targeted hiring and contracting, too.
The letter compares policies held by many Fortune 100 companies to slavery and racial segregation.
“In an inversion of the odious discriminatory practices of the distant past, today’s major companies adopt explicitly race-based initiatives which are similarly illegal,” the letter says, pointing to “racial quotas” in hiring, recruiting, retention, promotion and advancement.
The letter immediately reminds companies they must refrain from “discriminating on the basis of race, whether under the label of ‘diversity, equity and inclusion’ or otherwise. Treating people differently because of the color of their skin, even for benign purposes, is unlawful and wrong.”
The U.S. Supreme Court ruling struck down race-based admissions policies at Harvard College and the University of North Carolina.
The letter says the court’s decision “reinforced the principle that all racial discrimination, no matter the motivation, is insidious and unlawful,” which means eliminating “all of it.”
“If your company previously resorted to racial preferences or naked quotas to offset its bigotry, that discriminatory path is now definitively closed,” the letter continued. “Your company must overcome its underlying bias and treat all employees, all applicants, and all contractors equally, without regard for race.”
Rokita’s endorsement comes after he also criticized Target’s Pride campaign earlier this month, claiming in a Republican-backed letter that the corporation is infringing on states’ ability to “safeguard citizens.”
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