SIOUX FALLS S.D. (KELO) — South Dakota Attorney General Marty Jackley said Wednesday his office is not seeking to obtain medical records of state residents who obtain a legal abortion in another state.

“…because the state Legislature and the Governor signed into law in South Dakota, that a female obtaining an abortion cannot be prosecuted. So that’s already that, that in my opinion, was the law before and the Legislature made it very clear. And so that is not what’s going on here,” Jackley said in a KELOLAND News interview.

Jackley signed a letter to the U.S. Department of Health and Human Services on June 16 opposing the Department of Health and Human Services’ proposed rule, “HIPAA Privacy Rule To Support Reproductive Health Care Privacy, 88 Fed. Reg. 23506 (Apr. 17, 2023),” according to a copy of the letter available through Mississippi AG Lyn Fitch. Jackley was one of 19 AGs to sign the letter.

The letter says the proposed HIPAA privacy rule wrongfully extends the federal government’s power over states’ rights. It would curb efforts to investigate health care provider licensure investigations, criminal investigations that require medical records and Medicaid investigation, Jackley said. The proposed HIPAA rule contradicts or is a reversal of DHHS’s approach to sharing protected health information with law enforcement, according to the letter.

“South Dakota legislature, and it was within their right signed by the governor, has a law that if if a female were to seek an abortion, they aren’t prosecuted under the trigger law,” Jackley said. “So those are matters of state law, not federal concern. And so those are for an elected legislature to decide. They are not for a distant Washington, political appointee, to change the rules.”

Supporters of the proposed HIPAA rule said it protects those living in states where it’s illegal to receive a legal abortion or legal gender-affirming care in a state where it’s legal. The medical records of those individuals could not be shared with an official in a state where the abortion or care is illegal, supporters of the proposed rule said.

A summary of the proposed rule on the Federal Register says “The proposal would modify existing standards permitting uses and disclosures of protected health information (PHI) by limiting uses and disclosures of PHI for certain purposes where the use or disclosure of information is about reproductive health care that is lawful under the circumstances in which such health care is provided.”

The summary also says “The proposal would modify existing standards by prohibiting uses and disclosures of PHI for criminal, civil, or administrative investigations or proceedings against individuals, covered entities or their business associates (collectively, “regulated entities”), or other persons for seeking, obtaining, providing, or facilitating reproductive health care that is lawful under the circumstances in which it is provided.”

Supporters of the ALCU said the proposed DHHS policy protects those seeking legal abortions and legal gender-affirming medical care.

“The protections proposed by the Biden administration are desperately needed to protect the privacy of vulnerable individuals and communities in South Dakota and beyond,” the ACLU of South Dakota said in a July 19 news release.

“Again, I realize that the ACLU and other organizations have used this as a political opportunity, a fundraising opportunity. And in my mind, that’s not appropriate,” Jackley said.

The AGs want to ensure the ability for their offices to access medical records on a limited basis for Medicaid, health care providers and similar investigations, Jackley said.

“In my job as Attorney General, I appreciate and believe strongly that medical records
of an individual are and should remain private. But there are certain very limited instances
where with court oversight, a prosecutor may need to seek medical records in order to review a
doctor’s conduct. It might be to exonerate a physician that may have a criminal allegation or it
maybe to take appropriate criminal action,” Jackley said. “There are also very limited instances, again, where a licensing board in South Dakota such as a South Dakota medical association or board may want to look at some medical records to determine whether or not a physician is appropriately disciplined or is appropriate, you know, acting within the state of South Dakota. And so there again, are limited instances where I felt there is a justification to look into medical records to help us do our jobs.”

On July 19, the South Dakota ACLU issued a news release on the AG letter.

“There is a simple and chilling motivation behind this letter: keeping the door open for criminalizing people who seek abortions or gender-related care beyond state lines,” Samantha Chapman, ACLU of South Dakota advocacy manager, said in the release.

There is a process to follow when an AG seeks medical records from another state.

“Sometimes we’re able to obtain consent,” Jackley said.

In the case of a criminal investigation with alleged victims, the AG may receive consent on medical records. Sometimes, no consent is received.

“We believe strongly that these medical records are privileged; they should be
kept private, but there are instances in our jobs where we’re required to look, where we have court oversight. So before we go looking, a judge would have to say, ‘Yeah, there’s a reason to believe a crime was committed, and this particular individual was involved in that crime,'” Jackley said.

“And that’s why it’s exceptionally important to understand that law enforcement only looks at limited records when there’s probable cause when there’s oversight by a judge, and may perhaps be grand jury and grand jury records,” Jackley said.