It is difficult to believe that 6 weeks have passed since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health was handed down.  Conflicting state and federal laws, ad hoc efforts to either expand or limit access to reproductive health in a specific locality, injunctions, and trigger laws have all combined to create an uncertain and ever-changing environment.  It may be more accurate to state that healthcare providers now have less insight into the current access and privacy laws than they did at the moment the decision was published.

This post is meant to serve as a future road map for health information (HI) professionals; the discussion will center around emerging points of contention and when HI professionals will be needed to provide stakeholders with their personal operational experience.  The composition of successful legislation and regulation can only be achieved with the input of HI professionals.

At this point, most HI professionals are probably curious as to what vital role that they have in the aftermath of Dobbs.  A review of the details in the Dobbs decision indicates that HI professionals will have a significant impact on how sensitive information (SI) is classified and released.

Redefining the Issue at Hand

Most news coverage of the Dobbs decision has focused on the legality of abortion services.  Access to abortion services is the most tangible, and time-sensitive, consequence of the Supreme Court’s decision.  It is tempting to only see Dobbs as limited in scope and only pertaining to abortion access.

There are several signs that that the Dobbs decision will not be confined to the question of abortion.  Justice Thomas’ concurring opinion noted that there were several previous Supreme Court cases decided on the same legal basis as Roe v. Wade.  Consequently, Justice Thomas indicates that these cases, including Griswold v. Connecticut, should be re-examined in light of the Dobbs decision[1].

For those readers unfamiliar with the case, Griswold v. Connecticut was a 1965 Supreme Court decision where the Warren Court found unconstitutional an 1879 law prohibiting the “use of any drug, medical device, or instrument in furthering contraception” as it prevented the exercise of privacy between a married couple (found in the various zones of privacy created within the Bill of Rights). [2]  In essence, the same flawed argument in Roe is also found in Griswold.  If Roe was overturned, it logically follows that Griswold should similarly be overturned.

There are two important takeaways from examining this argument:

  1. The scope of the debate will not remain with the legality of abortion; HI professionals should anticipate that the larger field of “reproductive health” will be debated.
  2. The population affected by the larger reproductive health will not be limited to individuals who can give birth; it will also include men and individuals who cannot give birth.

How HI Professionals Impact the Debate

The detailed knowledge and on-the-ground experience that HI professionals bring to the table will be necessary to ensure that all relevant information is captured correctly, appropriately marked as SI, and only disclosed as appropriate.  The correct classification of SI will be extraordinarily important as October 6, 2022 draws near and the definition of electronic health information (EHI) expands beyond the USCDI v1.

HI professionals can provide critical insight into the feasibility of proposed solutions.  For instance, it may sound appealing that all contraceptive prescriptions and procedures be classified as SI.  A HI professional can explain that this may not be a practical solution as past and present medications are listed in a patient’s medication history.  Additionally, it is essential to consider that not all contraceptives are prescribed by OB/Gyns, contraceptives may be prescribed for other purposes (e.g., headache prevention), and contraceptive procedures, like vasectomies, may be documented by other specialists at different levels of care.

HI professionals will be critical in the upcoming discussions about how to handle SI in a confidential manner while also weighing the need for access.  During the next months, ScanSTAT Technologies will be offering additional webinars, blogs, and white papers on key considerations for HI professionals. These topics will include the conflict between protecting sensitive information and embracing interoperability, how to navigate discussions with staff on highly charged topics, and emerging topics such as how to handle new fetal personhood legislation.  Please keep an eye out for emails announcing the new materials and webinars.

[1] (Dobbs v. Jackson Women’s Health Organization, 2022)

[2] (Griswold v. Connecticut, n.d.)

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