In the heated abortion debate in the United States, the topic of data collection can seem inconsequential and tangential. But the information state and city governments collect about abortion patients is becoming another flashpoint in the country’s stark divide on the issue.
Some states with Republican-controlled legislatures have moved to require more information about every abortion, while some Democratic-controlled states are reducing the information they collect, fearing it could be used to identify patients or prosecute abortion providers .
“In a country that is deeply divided, where abortion is legal in some places and illegal in others, giving away where you live or where you were born seems much more dangerous than in a country where abortion before viability is legal,” said Rachel Rebouché. the dean of Temple University’s Beasley School of Law and an abortion rights legal scholar. “Interstate conflict is only intensifying, and the data is the first shot at how to make that conflict happen,” he added.
Abortion rights advocates say they are particularly concerned about anti-abortion states using data to track patients who travel out of state for abortions or receive pills shipped from other states.
Such concerns are also spurring action at the federal level. On Monday, the Biden administration announced a rule to protect information about patients and abortion providers and prevent it from being used for investigation or prosecution. The rule is intended to keep law enforcement agencies in states that restrict abortion from obtaining information about patients traveling to states where abortion is legal and about the abortion providers who treat them. It is also intended to protect health care providers in patients’ home states who have provided them with unrelated medical care.
“No one should have their medical records used against them, their doctor or a loved one just because they sought or received legal reproductive health care,” said Jennifer Klein, director of the White House Policy Council, announcing the rule.
In Kansas, the Republican-dominated legislature recently passed a bill that would have require abortion providers to ask patients 11 questions about why they were terminating their pregnancies, including whether “having a baby will interfere with the patient’s education, employment or career” and whether “the patient already has enough or too many children.”
“We always want data, and it would be good to know, for the department to know, how many women were choosing abortion because they couldn’t pay for the child financially, or maybe they were being forced to, and who was forcing them,” said Beverly Gossage, a Republican state senator. , speaking in favor of the bill during a legislative session.
Governor Laura Kelly, Democrat, vetoed the bill, noting that Kansas voters had approved a referendum in 2022 to protect abortion rights. However, the legislature may have enough votes override the veto.
In New Hampshire, where abortion is legal and has not collected historical abortion data, the Republican-controlled Senate this month passed bill to require it, including where a patient lives. Democrats objected, especially because while the bill does not require the reporting of identifying information for patients, it does not prohibit it.
Illinois, which supports abortion rights, stopped requiring providers to report specific patient data and now only collects aggregate numbers “because we believe it’s impossible to trace it to an individual patient,” said Karen Shelley, deputy general counsel. of the Illinois governor’s office.
He added: “The most secure data is the data that the state never collects.”
For similar reasons, Maine stopped collecting certain information, including data on previous pregnancy history, race and education.
Not all jurisdictions that support abortion rights have been quick to heed concerns about data collection. Last fall, New York City alarmed abortion providers with its health department’s proposal to update reporting regulations.
Under the proposal by the administration of Mayor Eric Adams, a Democrat, abortion pill providers, who previously were not expressly subject to city reporting requirements, would have to report specific information about each patient, including date of birth, place of birth , marital status, previous pregnancies, previous abortions and the first two letters of their first and last name.
Patients who traveled to New York for abortion pills, as many do from states with abortion bans, would have to disclose which state they lived in.
Several abortion providers wrote letters or testified against the proposal. “It is an unwarranted expansion of government surveillance of women’s reproductive health care decisions,” executives from Hey Jane, a prominent telemedicine abortion service, wrote to city officials in November.
Kiki Freedman, chief executive of Hey Jane, said in an interview that reporting requirements could discourage patients, who “often have concerns about where their data will go, and many specifically ask whether it could be disclosed to the government ».
Providers said they were surprised the proposal had been advanced by New York City officials, who have otherwise taken steps to defend abortion access. They noted that the city’s proposal required far more detail than New York State requires, and that state officials were considering collecting even less information.
In a letter to city officials, Dr. Linda Prine, a longtime New York abortion provider, wrote “you should all be ashamed of yourselves for making this bad situation worse in New York, of all places.”
Despite concerns from providers, the city’s Board of Health approved the proposal with just one change: instead of collecting the first two letters of patients’ first and last names, patients would be labeled with case numbers.
In an email shortly before the revised policy took effect in January, a spokesman for the city’s health department, Patrick Gallahue, defended the requirements.
“We need data to improve services, identify gaps, allocate resources to address inequities and ultimately provide better care,” he said, adding, “The changes have simply made the existing requirement clearer, which is that data for medical abortions must also be notified. with the aim of better approaching the communities with care”.
City officials gave similar answers in an interview in March, but three days after the interview, the city said it was significantly changing its position and would now support eliminating or making optional many of the potential identifiers it previously required.
Anne Williams-Isom, the city’s deputy mayor for health and human services, later acknowledged in an interview that the change occurred after The New York Times asked questions. “You raise issues and people pay attention to them, and then hopefully they do the right thing,” he said.
City health officials said they now plan to ask the Board of Health to approve changes to protect patients from identification. These changes include eliminating reporting of patients’ marital status, date of last menstrual period, and information about previous pregnancies. Additionally, instead of birth dates, providers will report patients’ ages. Instead of birthplace, providers will only report if patients were born in the United States. and instead of the states in which patients live, providers will only report whether or not they live in New York. Provider names could be omitted and some information would be optional.
“We all want to collect the minimum data necessary to perform our vital public health functions,” said Dr. Ashwin Vasan, the city’s health commissioner, in an interview, adding that the city “will go to the mat against anyone who tries to access our data for any reason that is not justified.”
Even some health officials in states with strict abortion restrictions have acknowledged the risk data could pose to patients’ privacy. In Indiana, which allows abortions in limited circumstances, including to protect the health or life of the patient and for fatal fetal abnormalities, the health department decided to cease to circulate publicly where applicable they included demographic and provider information. The department consulted with the state’s public access consultant, who concluded that such records are “filled with information that could be reversed to identify patients.”
Indiana Attorney General Todd Rokita, a vocal opponent of abortion, has objected, in writing to the governor and legislative leaders that without such records, citizens could not file complaints against abortion providers with his office and therefore, under Indiana law, no enforcement actions could be taken against the providers.
Because the records stopped circulating, he wrote, “Indiana’s pro-life laws became unenforceable.”
He urged the Legislature to take action, saying the Indiana Abortion Data Act “is intended to require publicly available reports so that abortion providers are accountable and follow the law.”