N. Dakota AG: Docs can use health info to defend abortions

Nov 16, 2022, 2:16 AM | Updated: 4:28 pm

FARGO, N.D. (AP) — Doctors who perform abortions should be able to disclose the patient’s personal health information as part of their defense to avoid prosecution, North Dakota’s attorney general said Wednesday.

North Dakota’s abortion ban, which is currently on hold because of a lawsuit, makes the procedure illegal except in cases of rape or incest or when the life of the mother is in danger. Doctors would have to prove those exceptions in court in order to be cleared of a Class C felony.

Drew Wrigley said he couldn’t find any cases that address that scenario and believes it would not violate the privacy rule.

“It is my opinion that state and federal law do not preclude a defendant from disclosing a patient’s (personal health information) in order to assert an affirmative defense, so long as the applicable requirements are met,” Wrigley wrote.

Wrigley’s analysis on that specific issue came after state Democratic Reps. Zac Ista, of Grand Forks, and Karla Rose Hanson, of Fargo, requested opinions on several aspects of the state’s abortion laws. Because many of the issues regarding abortion are being debated in state and federal courtrooms, Wrigley declined to address other questions at this time.

Ista said that while he appreciated Wrigley’s opinion “on this particular question,” he doesn’t believe it does much to weaken a law that puts doctors in precarious situations.

“Doctors are still going to have to worry about whether they will be hauled into court on serious criminal charges if they have to provide life saving care and emergency situations,” Ista said. “The protected health information aspect is a relatively small part of that.”

Ista said it also puts an additional burden on the patient.

“She is in a moment of crisis, an emotional moment, one where she’s dealing with a serious health challenge, potentially losing a pregnancy that she was very excited for,” Ista said. “And now she’ll have to endure the indignity of being asked to sign an additional waiver of her confidential health information because their doctor has to worry about their own criminal liability.”

North Dakota’s Supreme Court will hear arguments later this month on the state’s abortion ban after a judge said that there’s a “substantial probability” a constitutional challenge to the law will succeed. The state’s lone abortion clinic, located in Fargo, has already moved across the border to neighboring Minnesota.

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