Navigating Privacy and Compliance Post-Dobbs Ruling

December 20, 2022

The recent reversal of Roe v. Wade has put a spotlight on digital surveillance of health-related information. In states where abortions are illegal, the vast amounts of personal information routinely collected from consumers and aggregated by data brokers potentially put women and healthcare providers at risk of prosecution. 

Dr. Laura Hoffman, professor and Co-Director of the Center for Health Law and Policy at Cleveland State University College of Law, took the time to share her expertise surrounding the subject of data privacy shifts in this evolving landscape. Dr. Hoffman previously served as a Senior Research Fellow with the Solomon Center for Health Law and Policy at Yale Law School where she contributed to the development of projects and events involving palliative care policy, Elder Law, brain injury, and Disability Law. 

Dr. Hoffman was joined by professor and Director of the Center for Cybersecurity and Data Privacy Brian Ray, and Director of Graduate Studies and Professional Development Julie DiBiaso to discuss the growing questions surrounding data privacy and the future of reproductive rights in America.

Privacy and the Supreme Court

The Supreme Court’s seminal Roe v. Wade decision gave women a constitutional right to abortion in 1973, which the recent Dobbs v. Jackson essentially overturned. By removing constitutional protection from abortion, Dobbs freed state legislatures to pass new laws or revive existing ones that restrict or even prohibit abortions, including some that impose criminal penalties. State abortion laws range from quite lenient to extremely stringent, so the direct impact differs enormously even just across state lines. It’s an uncertain area for everyone, including healthcare professionals now in the difficult position of determining what exactly their state criminalizes.

From a democratic perspective, the changeup simply means that the federal government is politely bowing out of the legality or illegality of abortion at at the State level. The Constitution outlines structural privacy measures in the fourth (no unreasonable searches and seizures) and fourteenth (equal protection of the laws) amendments. Many believe that Roe v. Wade’s ruling was grounded in those foundations. Whatever the case, states now hold more power than before within their individual dictates. That means that some might find their medical history and health records suddenly subject to increased scrutiny, especially if they’re considering a now-illegal abortion. 

Privacy and Compliance Post-Dobbs

UNDERSTANDING HIPAA

The Health Insurance Portability and Accountability Act establishes national standards to protect individuals’ medical records and other individually identifiable health information. It requires appropriate safeguards to protect the privacy of protected health information and sets limits and conditions on the uses and disclosures that may be made of such information without an individual’s authorization. 

This deterrent explains why it can be so difficult to get even your own information from a doctor’s office, let alone share it with other people. The reality is, however, that HIPAA is limited in scope to healthcare providers and their vendors. And, even for those covered entities, HIPAA permits law enforcement officials to gain access to protected information without a patient’s permission. 

LIMITED PRIVACY WHEN LAW ENFORCEMENT GETS INVOLVED

Once law enforcement officials have a search warrant, subpoena, or other legal documents to back up their efforts, however, nothing more can legally prevent their actions. In a criminal investigation by law enforcement, officials are allowed to collect evidence without a patient’s permission. Extending beyond medical records, that could indict information garnered from fertility apps, website searches, or even text messages. Suddenly, valid concerns about one’s privacy get taken to a whole new level – especially now as midterm elections loom. Determine your state laws and future measures laid out on your ballot this election season.

We can now connect Roe v. Wade to the broader problems surrounding consumer data, privacy, and apps collecting what is clearly sensitive information. Interested in even more on this pertinent subject? Check out our blog on the future of data privacy in a post-Roe America

HOW TO BECOME AN EXPERT

With Cleveland-Marshall’s cutting-edge online Master of Legal Studies (MLS) in Cybersecurity and Data Privacy, students receive an integrative education preparing you to understand the technical and business dimensions of cybersecurity and privacy as well as current laws and regulations. You get access to preeminent experts like Dr. Laura C. Hoffman, and the ability to analyze these complicated current legal issues at an extremely piercing, profound level through courses like HIPAA and Privacy. 

Other courses include Cybersecurity I and II, teaching how cybersecurity and privacy work together so you can grasp the technical side. Privacy Law and Management analyzes the legal business’s significant privacy laws. Corporate Compliance I and II set you on course to become a certified compliance professional. Cyber Law teaches criminal law and procedure, national security law, and international law. Finally, the Cybersecurity Technical Capstone is a hands-on course in which students gain practical experience to understand how, why, and what to do when a cyberattack strikes. 

The asynchronous, part-time, and fully online program is led by faculty from the Center for Cybersecurity and Privacy Protection at Cleveland-Marshall College of Law and other leading practitioners in the field, with a focus on relevant, real-world experience. The MLS degree is designed for professionals who must understand the significant legal and business risks posed by cybersecurity and data privacy. Graduate with the knowledge and necessary skills to enter these crucial and evolving fields. Then, quickly advance to senior positions within organizations using your acute insights and coveted credentials. Our application deadline for the spring semester closes on January 4, so get started now!

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