How a legal loophole allows anti-abortion prosecutors to obtain women’s secret health data

Via Las Vegas Sun
By Michael Hiltzik

The following passage is an excerpt from this article:

“There are now categories of care in which states have taken dramatically different approaches to whether that care should be available,” says Carmel Shachar, an expert on health law and policy at Harvard Law School. Abortion is the most evident area, but divergences in state law increasingly apply to gender-affirming care and substance abuse treatment.

Those divergences, Shachar told me, make the relevant medical records especially sensitive to the point where they need to be protected from law enforcement.

But expansive databases may make that difficult — a prosecutor in antiabortion Texas might be prevented by a medical shield law from accessing data about a Texan’s legal treatment in Massachusetts, but theoretically could subpoena it from a pharmacy chain’s branch in Texas.

The challenge goes beyond simply shielding direct evidence of a legal abortion — such as a prescription for mifepristone — from prying law enforcement eyes in an antiabortion state.

“There’s a perception that abortions or gender-affirming care exist on their own islands separate from other medical care,” Shachar says. “But somebody who is medically literate can read between the lines of a medical record to see if an abortion happened.”

For instance, consider if a medical record showed that a woman was pregnant and records show a bit later that she’s begun to take chemotherapy treatment for cancer that would be incompatible with pregnancy.

“That might be suggestive that she was pregnant and is no longer pregnant, with no baby to show for it,” Shachar says. “How much of a medical record you need to protect to truly protect the privacy of people who have had abortions or gender-affirming care is murky.”