Do Doctors have First Amendment Protection from Anti-Abortion Laws?

Are Physicians Protected by the First Amendment?

Are Patients protected by HIPAA, the Patient Privacy Law?

Can just anybody, or even the state, sue, or arrest and charge with a crime anyone who discussed abortion, was referred for, or had an abortion — even if it was out of the state of the patient’s residence?

How “long” is the “long arm of the law,” and can it actually investigate, charge, prosecute, and punish physicians and/or patients for receiving private healthcare advice and/or services?

Suddenly! Yes, suddenly — as in acutely, and even cataclysmically-like-an-earthquake so — physicians and other healthcare professionals seem to find themselves between a proverbial rock, and a hypothetical hard place.

The reason why, is because 6 GOP-nominated radicals on the still-9-member Supreme Court of the United States (SCOTUS) {Those justices are: Alito, Thomas, CJ Roberts, Kavanaugh, Gorsuch, and Barrett.} have completely ignored judicial precedent — which is the “holy grail” of jurisprudence that helps form the foundation of law itself, and thereby give stability to civil society — and overturned at least TWO rulings of an earlier court — Roe v Wade (1973), and Planned Parenthood v. Casey (1992) — in their 6-3 decision in Dobbs v. Jackson Women’s Health Organization (2022).

The Roberts Court, April 23, 2021
Seated from LEFT to RIGHT: Justices Samuel A. Alito, Jr., Clarence Thomas, Chief Justice John G. Roberts, Jr., Justices Stephen G. Breyer and Sonia Sotomayor
Standing from LEFT to RIGHT: Justices Brett M. Kavanaugh, Elena Kagan, Neil M. Gorsuch, and Amy Coney Barrett.
Photograph by Fred Schilling, Collection of the Supreme Court of the United States

Of course, overturning even century-old precedent has been the characteristic hallmark of the Roberts Court. Since becoming Joker in Chief Justice in September 2005, he has presided over 20 reversals of well-established precedented opinion, some dating as far back as 1911. If, in the law, nothing is TRULY ever settled, and any court now, or in the future, can simply overturn any law or decision with which they disagree — regardless of how long it’s been in effect, and regardless of what their confirmation testimony was — then our nation’s foundation is insecure.

There are numerous Constitutional problems with the 6 radicalized jurists’ decision, not the least of which is that, by returning to the states the ability to decide abortion law (or any other law over which Federal law has presided), it completely ignores undermines and usurps the essential tenet of the Constitution’s Supremacy Clause, which is that Federal law has ultimate authority over any other law by a state, or locality.

To add insult to injury, Associate Justice Clarence Thomas — long known as “The Silent Justice,” because from Wednesday, February 22, 2006, until Monday, February 29, 2016 — 10 years — he NEVER spoke one word at hearings — wrote in Dobbs that judicial activists could also overturn other recent cases such as Griswold v. Connecticut, Obergefell v. Hodges, Lawrence v. Texas, and other decisions with which they personally disagree.

On page 3 of his opinion (page 119 of 213 of the entire document), he wrote in part that,

“…in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is “demonstrably erroneous,” Ramos v. Louisiana, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring in judgment) (slip op., at 7), we have a duty to “correct the error” established in those precedents, Gamble v. United States, 587 U. S. ___, ___ (2019) (THOMAS, J., concurring) (slip op., at 9). After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.”

Justice Thomas continued in part by writing,

“That 50 years have passed since Roe and abortion advocates still cannot coherently articulate the right (or rights) at stake proves the obvious: The right to abortion is ultimately a policy goal in desperate search of a constitutional justification.”

He predicates his entire opposition to the ruling in Roe upon but one idea: His distaste for the term

Will You Release Your Medical Records?

Just in the case you may not know it, there’s a law in our United States called HIPAA, which is the acronym for the Health Insurance Portability and Accountability Act.

Signed into law in 1996 by then-POTUS Bill Clinton, the long title is “An Act To amend the Internal Revenue Code of 1996 to improve portability and continuity of health insurance coverage in the group and individual markets, to combat waste, fraud, and abuse in health insurance and health care delivery, to promote the use of medical savings accounts, to improve access to long-term care services and coverage, to simplify the administration of health insurance, and for other purposes.”

The biggest takeaway from the bill for most people is the privacy it mandates for patient’s medical records, care, and treatment. With fines/penalties for violation starting at $250,000 per violation, an entire industry has grown up around HIPAA.

The Department of Health and Human Services summarizes, in part, the law’s privacy provisions:

“The Health Insurance Portability and Accountability Act of 1996 (HIPAA) required the Secretary of the U.S. Department of Health and Human Services (HHS) to develop regulations protecting the privacy and security of certain health information.¹ To fulfill this requirement, HHS published what are commonly known as the HIPAA Privacy Rule and the HIPAA Security Rule. The Privacy Rule, or Standards for Privacy of Individually Identifiable Health Information, establishes national standards for the protection of certain health information. The Security Standards for the Protection of Electronic Protected Health Information (the Security Rule) establish a national set of security standards for protecting certain health information that is held or transferred in electronic form. The Security Rule operationalizes the protections contained in the Privacy Rule by addressing the technical and non-technical safeguards that organizations called “covered entities” must put in place to secure individuals’ “electronic protected health information” (e-PHI). Within HHS, the Office for Civil Rights (OCR) has responsibility for enforcing the Privacy and Security Rules with voluntary compliance activities and civil money penalties.”

POTUS Bill Clinton Signing HIPAA

Before the HIPAA existed, there were no security standards nor requirements to protect patients’ health information or patients privacy in the entire health care industry. In reality, physicians, or anyone with access to the record – including the janitor and housekeeping crew – could simply access and divulge a patient’s entire medical record to the press, or to anyone, without any legal recourse for the victim. Now, it’s a violation of the law to even discuss any Personal Health Information, or Personally Identifying Information about the patient outside of a clinical setting, and that includes on elevators in hospitals. The law is so strict, that anyone who is not involved in the patient’s care cannot access the patient’s record without violating the law.

There have been cases where renown individuals, or those with celebrity status, including politicians, have had their records accessed by those within the healthcare system in violation of the law, ostensibly to satisfy their 24karat curiosity, or for other nefarious purposes, such as to gossip about the patient, or to divulge the information they found to the press. Healthcare organizations, especially large ones, are particularly sensitive to such violations of the HIPAA, and many, if not most, have policy in place to censure, or most often, dismiss for cause (fire) any employee who examines a record of a patient whom they’re not treating, or caring for.

In short, the law safeguards and protects patients’ right to privacy of their healthcare information in ways the average patient cannot imagine, including transmission of such information electronically, such as via facsimile or Internet.

The law also provides authorization for a patient to request a healthcare organization voluntarily release select portions of, or their entire medical records, to individuals whom they specify, such as to attorneys who may be representing their interests in a matter of law, including to the patients themselves, personally.

What many may not know about the law, is that it was a bipartisan bill sponsored by