II 

118TH CONGRESS 

1ST SESSION S. 323 

To ensure the privacy of pregnancy termination or loss information under 

the HIPAA privacy regulations and the HITECH Act. 

IN THE SENATE OF THE UNITED STATES 

FEBRUARY 9, 2023 

Ms. HIRONO (for herself, Mr. BENNET, Mrs. GILLIBRAND, Ms. WARREN, Mr. 

WYDEN, Mr. BROWN, Mrs. FEINSTEIN, Ms. CORTEZ MASTO, Ms. 

DUCKWORTH, Mrs. MURRAY, and Mr. BOOKER) introduced the following 

bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions 

A BILL 

To ensure the privacy of pregnancy termination or loss information under the HIPAA privacy regulations and the 

HITECH Act. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Secure Access for Es5 sential Reproductive Health Act of 2023’’ or the ‘‘SAFER 

6 Health Act of 2023’’. 


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1 SEC. 2. ENSURING THE PRIVACY OF PREGNANCY TERMI2 NATION OR LOSS INFORMATION UNDER THE 

3 HIPAA PRIVACY REGULATIONS AND THE 

4 HITECH ACT. 

5 (a) IN GENERAL.— 

6 (1) PROHIBITION ON DISCLOSURE.—Subject to 

7 paragraph (2) and notwithstanding any regulations 

8 promulgated pursuant to section 264(c) of the 

9 Health Insurance Portability and Accountability Act 

10 of 1996 (42 U.S.C. 1320d–2 note; Public Law 104– 

11 191), a covered entity or a business associate of a 

12 covered entity may not disclose pregnancy termi13 nation or loss information of an individual in Fed14 eral, State, local, or Tribal proceedings, including 

15 civil, criminal, administrative, legislative, or other 

16 proceedings, without the valid authorization of the 

17 individual made in accordance with section 164.508 

18 of title 45, Code of Federal Regulations (or a suc19 cessor regulation). 

20 (2) EXCEPTIONS.—Paragraph (1) shall not 

21 apply in the case of a disclosure of pregnancy termi22 nation or loss information of an individual by a cov23 ered entity or a business associate of a covered enti24 ty if— 

25 (A) the pregnancy termination or loss in26 formation is necessary for use in defense of a 


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1 professional liability action or proceeding 

2 against the covered entity or business associate 

3 and the pregnancy termination or loss informa4 tion is disclosed by— 

5 (i) the covered entity or business asso6 ciate to the covered entity’s or business as7 sociate’s attorney or professional liability 

8 insurer or insurer’s agent; or 

9 (ii) the authorized attorney of the cov10 ered entity or business associate to a court 

11 or body hearing the action or proceeding; 

12 or 

13 (B)(i) the pregnancy termination or loss 

14 information is necessary to investigate physical 

15 harm to the individual by another person di16 rectly relating to the loss or termination of the 

17 pregnancy; and 

18 (ii) the individual is unable to provide con19 sent due to death or incapacity. 

20 (b) HITECH.— 

21 (1) PRIVACY EXCEPTION.—The Secretary shall 

22 revise section 171.202 of title 45, Code of Federal 

23 Regulations, to clarify that an entity’s practice of 

24 not fulfilling a request to access, exchange, or use 

25 electronic health information in order to comply with 


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1 subsection (a) shall not be considered information 

2 blocking (as defined in section 171.103 of title 45, 

3 Code of Federal Regulations (or a successor regula4 tion)) if the information is pregnancy termination or 

5 loss information. 

6 (2) GREATER SECURITY.—The Secretary shall 

7 revise section 170.401 of title 45, Code of Federal 

8 Regulations, to require that as a condition of certifi9 cation (as described in that section), a health IT de10 veloper (as so described) shall implement practices 

11 that allow for the segregation of data relating to 

12 pregnancy termination or loss information to ensure 

13 compliance with subsection (a). 

14 (c) PREEMPTION; MODIFICATION OF STATE PRE15 EMPTION EXCEPTIONS.— 

16 (1) PREEMPTION.— 

17 (A) IN GENERAL.—This section shall pre18 empt any State law to the extent that the State 

19 law conflicts with or prevents application of this 

20 section. 

21 (B) EFFECT.—Nothing in subparagraph 

22 (A) shall be construed to preempt a State law 

23 to the extent that the State law provides great24 er privacy protections for pregnancy termiVerDate Sep 11 2014 00:06 Feb 22, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S323.IS S323

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1 nation or loss information than provided under 

2 this section. 

3 (2) MODIFICATION.—The Secretary shall revise 

4 section 160.203 of title 45, Code of Federal Regula5 tions, to ensure that no exception to the general pre6 emption rule stated in that section applies with re7 spect to pregnancy termination or loss information 

8 other than the exception described in paragraph 

9 (1)(B). 

10 (d) OUTREACH.—The Secretary shall conduct an out11 reach campaign to ensure that covered entities, business 

12 associates of covered entities, the public, and affected indi13 viduals are aware of the requirements of this section and 

14 any revisions to regulations made pursuant to this section. 

15 (e) PROCEDURE.— 

16 (1) INTERIM FINAL RULE.—Not later than 90 

17 days after the date of enactment of this Act, the 

18 Secretary shall revise each regulation as required by 

19 this section through publication of an interim final 

20 rule in the Federal Register. 

21 (2) FINAL RULE.—Not later than 270 days 

22 after the date on which an interim final rule is pub23 lished under paragraph (1), the Secretary, after pro24 viding opportunity for public comment, shall publish 


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1 in the Federal Register a final rule with such modi2 fications as the Secretary determines appropriate. 

3 (f) DEFINITIONS.—In this section: 

4 (1) HIPAA TERMS.—The terms ‘‘business asso5 ciate’’, ‘‘covered entity’’, and ‘‘protected health infor6 mation’’ have the meanings given those terms in sec7 tion 160.103 of title 45, Code of Federal Regula8 tions (or a successor regulation). 

9 (2) PREGNANCY TERMINATION OR LOSS INFOR10 MATION.—The term ‘‘pregnancy termination or loss 

11 information’’ means protected health information of 

12 an individual that relates to information that could 

13 reveal having or seeking an abortion or care for 

14 pregnancy loss, including, without limitation, any re15 quest for, or receipt of, items, services, education, 

16 counseling, or referrals relating to the termination 

17 or loss of a pregnancy of the individual, including 

18 abortion, miscarriage, stillbirth, and ectopic preg19 nancy. 

20 (3) SECRETARY.—The term ‘‘Secretary’’ means 

21 the Secretary of Health and Human Services. 

Æ 


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