In response to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization and the resulting laws enacted in several states to prohibit abortions, New Jersey has passed new laws designed to protect individuals who visit New Jersey seeking reproductive healthcare services, in addition to the medical providers who provide them with care in New Jersey. These laws, however, do not change anything in New Jersey with respect to a woman’s right to abortion. Patients in New Jersey have, and continue to have, a right to in-clinic or medication abortions, without waiting periods, regardless of gestational age, and without parental notification if the patient is a minor.
Following the Court’s decision, and in anticipation of an increase in the number of out-of-state pregnant women traveling to New Jersey for abortion services, Governor Phil Murphy signed two bills on July 1, 2022 (A-3975/S-2633 and A-3974/S-2642) to shield these patients, along with New Jersey residents and medical providers, from lawsuits and other interventions from those states where abortion is now illegal. Part of the intent of these new laws is to ensure that the personal health information (PHI) of patients receiving comprehensive reproductive healthcare services in New Jersey, including abortion care, will be kept private, and to prevent PHI from being utilized by other states to investigate and prosecute individuals. New Jersey’s efforts are in furtherance, and consistent with, the continued efforts of the Office of Civil Rights (OCR) to administer and enforce the Privacy Rule of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) to prohibit healthcare entities from using or disclosing PHI absent an authorization from the patient.
What remains to be seen is how certain HIPAA exceptions, such as those for law enforcement purposes, will impact the protections of HIPAA. Governor Murphy’s nondisclosure bills attempt to address these concerns and will prohibit medical providers from disclosing certain information and/or communications about a patient’s reproductive healthcare services without the patient’s written consent in civil actions and other judicial proceedings. Likewise, public entities in New Jersey are forbidden from providing or using PHI in furtherance of any interstate investigation and/or proceeding that seeks to impose civil or criminal liability in connection with reproductive healthcare services on any person or entity.
Additionally, under the new laws, New Jersey licensing boards may not suspend, revoke, or decline to renew any license or registration of a medical provider based solely on the medical provider’s involvement in abortion-related services for a patient residing in a jurisdiction where abortion is illegal. Said differently, healthcare providers are protected from losing their professional licenses and/or registrations if they perform an abortion within New Jersey.
The bills also prohibit extradition of patients who travel to New Jersey for an abortion, along with patients who reside in New Jersey, in addition to the medical providers, for purported crimes relating to reproductive healthcare services that are unlawful in the outside state.
Further, New Jersey’s key law enforcement officials have taken a united position to share intelligence about threats to medical facilities and providers. They will also actively enforce the Freedom of Access to Clinic Entrances Act, a federal law prohibiting threats, force, obstruction, and property damage intended to interfere with reproductive healthcare services. Significantly, the New jersey Division of Consumer Affairs has vowed to protect the privacy of patients both within and outside of the state so that their private data will not be misused to target them.
As a result of these two new bills and the commitment of New Jersey’s law enforcement, New Jersey has established itself as a safe haven for women seeking reproductive healthcare services and the medical providers caring for them.