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0 In the fierce debate over abortion in the United States, the subject of data collection might seem wonky and tangential. But the information that state and city governments collect about abortion patients is becoming another flashpoint in the country’s bitter divide over the issue.
Some states with Republican-controlled legislatures have moved to require more information about each abortion, while some states where Democrats dominate are reducing the information they collect, fearing that it may be used to identify patients or to prosecute abortion providers.
“In a country that’s very divided, where abortion is legal in some places and illegal in others, giving where you live or where you’re born seems much more risky than in a country where abortion before viability is legal,” said Rachel Rebouché, the dean of Temple University Beasley School of Law and an abortion rights legal scholar. “Interstate conflict is only intensifying, and data is the first shot across the bow for how to actualize that conflict,” she added.
Abortion rights supporters say they are especially concerned about the potential for anti-abortion states to use 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 abortion patients and providers and prevent it from being used to investigate or prosecute them. The rule is intended to keep law enforcement agencies in states that restrict abortion from obtaining information about patients who travel to states where abortion is legal and about abortion providers who treat them. It is also intended to protect health care providers in the patients’ home states who have given them unrelated medical care.
“No one should have their medical records used against them, their doctor or their loved one just because they sought or received lawful reproductive health care,” Jennifer Klein, the director of the White House Gender Policy Council, said in announcing the rule.
In Kansas, the Republican-dominated legislature recently passed a bill that would require abortion providers to ask patients 11 questions about why they were ending their pregnancies, including whether “having a baby would 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 financially pay for the child, or perhaps 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, a Democrat, vetoed the bill, noting that Kansas voters had approved a referendum in 2022 protecting abortion rights. However, the legislature may have enough votes to override the veto.
In New Hampshire, where abortion is legal and which has not historically collected abortion data, the Republican-controlled senate this month passed a bill to require it, including the state where a patient lives. Democrats objected, especially because, while the bill does not require reporting identifying information about patients, it does not prohibit it.
Illinois, which supports abortion rights, stopped requiring providers to report specific patient data and now collects only aggregate numbers “because we believe it’s impossible to trace it back to an individual patient,” said Karen Sheley, deputy general counsel for the Illinois governor’s office.
She added: “The safest data is the data the state never collects.”
For similar reasons, Maine has stopped collecting some information, including data about prior 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 its reporting regulations.
Under the proposal by the administration of Mayor Eric Adams, a Democrat, providers of abortion pills, who previously had not been explicitly subject to the city’s reporting requirements, would have to report specific information on each patient, including date of birth, birthplace, marital status, previous pregnancies, previous abortions and the first two letters of their first and last names.
Patients who traveled to New York City for abortion pills, as many from states with abortion bans do, would have to disclose which state they lived in.
Several abortion providers wrote letters or testified against the proposal. “It is an unjustified expansion of government surveillance of women’s reproductive health care decisions,” officials with Hey Jane, a prominent telemedicine abortion service, wrote to city officials in November.
Kiki Freedman, Hey Jane’s chief executive, said in an interview that the reporting requirements could discourage patients, who “frequently have concerns about where their data will go, and many specifically ask about whether it could be disclosed to government.”
Providers said they were surprised that the proposal had been submitted by New York City officials, who have otherwise taken actions to champion abortion access. They noted that the city’s proposal had required significantly 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 all should be ashamed of yourselves for making this bad situation worse in New York City, of all places.”
Despite providers’ concerns, the city’s Board of Health adopted the proposal with only 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 city health department spokesman, Patrick Gallahue, defended the requirements.
“We need data to help improve services, identify gaps, allocate resources to address inequities and ultimately provide better care,” he said, adding, “The changes only made the existing requirement clearer, which is that medical abortion data must also be shared — with the aim of better reaching communities with care.”
City officials gave similar replies 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 potentially identifying details that 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 had asked questions. “You raise issues, and people pay attention to them, and then they hopefully do the right thing,” she said.
City health officials said they now plan to ask the Board of Health to adopt changes to protect patients from being identified. Those changes include eliminating reporting of patients’ marital status, the date of their last menstrual period and information about previous pregnancies. In addition, instead of birth dates, providers would report patients’ ages; instead of birthplace, providers would report only whether patients were born in the United States; and instead of the states patients live in, providers would report only whether or not they live in New York. Providers’ names could be omitted and some information would be optional.
“We all want to collect the minimum necessary data to carry out our vital public health functions,” Dr. Ashwin Vasan, the city’s health commissioner, said in an interview, adding that the city would “go to the mat against anyone trying to access our data for any reason that isn’t justifiable.”
Even some health officials in states with strict abortion restrictions have recognized the risk data could pose to patient privacy. In Indiana, which allows abortions in limited cases, including to protect the health or life of the patient and for fatal fetal anomalies, the health department decided to stop publicly releasing case-by-case reports that included demographic and provider information. The department consulted the state’s public access adviser, who concluded that such records are “populated with information that could be reverse engineered to identify patients.”
Indiana’s attorney general, Todd Rokita, a vocal abortion opponent, has objected, 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, enforcement actions against providers could not be initiated.
Because records stopped being released, he wrote, “Indiana’s pro-life laws became unenforceable.”
He urged the legislature to take action, saying that Indiana’s abortion data law’s “purpose is to require publicly available reports so that providers of abortions are held accountable and follow the law.”
