In the chaotic aftermath of
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In the chaotic aftermath of Dobbs v. Jackson Women’s Health Organization, this is the sort of possibility that colleges need to take seriously.
Due to a legal loophole in student-records law, all of us in higher education are more vulnerable to punishment under new abortion bans. Our students’ medical records — which may contain information about their abortion care, miscarriages, contraception, and more — are not as well protected as most people think. When this information leaks, our students, and everyone close to them, could be in legal danger.
The problem arises because student medical records are not protected by Hipaa (the Heath Insurance Portability and Accountability Act), like those of the faculty, staff, and basically anyone else in the United States seeking medical care.
Instead, student medical records, and other educational records, are protected by Ferpa (the Family Educational Rights and Privacy Act). Typically, when a student seeks medical care at a student health or counseling center, the student’s medical records fall under Ferpa.
Were a student to see an off-campus doctor, then the student’s records would receive Hipaa protection. But most students seek care on campus: It’s convenient, and (usually) more cost-effective.
In most ways, Ferpa is similar to Hipaa when it comes to protecting against outside breaches. Both laws prohibit colleges and medical providers from disclosing medical records to outside groups, including the police, without a subpoena or court order.
But Ferpa has a loophole that risks the medical privacy of our students. In our post-Dobbs world, this loophole endangers any student who seeks abortion care — and anyone who helps a student do so.
When I’ve covered the Ferpa loophole in the past, it has been in the context of student mental-health records and sexual assault or harassment. Here’s a hypothetical situation that repeats itself far too often in real life: First, a student sues her college for mishandling a sexual-assault case on campus. Once the lawsuit begins, the institution, under Ferpa, has the legal right to acquire all of the victim’s records from the campus counseling center, which (let’s say) she visited for help after her sexual assault.
Ferpa states that, in this scenario, an educational institution may disclose relevant student records “to the court, without a court order or subpoena.” This may sound benign, but in practice it means that a student’s medical records can be read by any number of university employees. Ask yourself: How would the “institution” acquire a student’s records in order to give them to the court? Someone at the college would need to take them from a student health or counseling center. Then someone would have to read all of the records to determine what is relevant.
After the initial disclosure from the counseling center, there is no meaningful rule that would stop redisclosure to others around campus: the chancellor, provost, any number of deans and deanlets, professors — anyone who can plausibly argue that they have an interest in the case.
The records might not be officially public, but the student’s privacy is breached the moment they leave a provider’s office.
Were students’ medical records protected by Hipaa, the bar for access would be much higher: The university would need to go through the legal process of discovery, overseen by a judge. As I explained in these pages in February, during discovery a judge supervises what records are released and to whom they are released. And since most cases settle, many early in the litigation process, discovery might not happen at all, and no medical records would ever be released.
But under Ferpa, as soon as a student initiates a legal proceeding against an institution — long before trial or even discovery — the college has immediate access to all of the student’s medical records, not just “relevant” ones. With no judicial oversight.
In our hypothetical rape case, the assault victim attends college in a state where abortion is banned, and she became pregnant as a result of her assault. However, she was able to have a medical abortion. Let’s say she acquired the prescription for the medicine from a sympathetic doctor in her home state, which doesn’t ban abortion.
She then talked about her abortion with her counselor, believing, as a rational person would, that her therapy records would be private. But since she has filed a lawsuit, her medical records later make their way around campus offices. Perhaps they come to the attention of the campus police. Perhaps they become public. Depending on the state, the victim could be subject to criminal prosecution.
Formally, most new abortion bans target abortion providers rather than those seeking abortions for themselves, although bans in nine states do not explicitly preclude prosecuting the patient. In March, a Texas woman was charged with murder for inducing her own abortion. In May, Louisiana legislators floated a bill that classified abortion as homicide. Authorities subsequently walked both decisions back, but how long until such overreach becomes the norm?
There is plenty of precedent. Long before Dobbs, prosecution of pregnant women for alleged crimes associated with pregnancy, miscarriage, and abortion was on the rise. In 2001, for example, Regina Knight was charged with homicide by child abuse after suffering a miscarriage and acknowledging that she had used cocaine. She was found guilty and sentenced to 12 years in prison. The South Carolina Supreme Court overturned her conviction in 2008, noting that her lawyer had failed to make use of scientific evidence showing that her miscarriage might have had any number of causes. (Knight had spent the intervening years in prison.)
In 2015, Purvi Patel was convicted of feticide and child neglect after allegedly taking abortion pills. (The feticide conviction was later overturned.) In other cases, women have been prosecuted for actions like drinking alcohol, not consenting to surgery, and not getting adequate bed rest. According to the National Advocates for Pregnant Women, more than 1,300 such incidents — arrests and prosecutions of pregnant women in which pregnancy was an essential element of the alleged crime — have been documented between 2006 and 2020.
So let’s adjust the hypothetical. Say the counselor helped the victim come to the decision to take the abortion pills, and the victim acquired the pills from her roommate.
Say our student goes to college in Texas, which in 2021 passed its bounty law deputizing ordinary people to enforce a near-total abortion ban using civil lawsuits. That means in Texas, anyone — literally anyone — can sue anyone they suspect helped another person obtain an abortion. (Many other states are interested in enacting, or have enacted, similar laws.)
In our hypothetical, the provost’s assistant’s assistant was given the task of making copies of the assault victim’s therapy records. The assistant read the records — of course they did — and noticed the victim discussed an abortion during therapy. The assistant, who is anti-abortion, can now sue the therapist (who gave counsel about abortion) and the roommate (who provided the pills) for the $10,000 bounty, each. And if, in therapy, the victim mentioned that a professor really helped her come to a good decision about seeking an abortion, then that professor could be at risk of a lawsuit as well.
That professor could be you.
Dobbs has created a world in which punishment for any reproductive care is a very real threat. Will students feel safe reaching out for help when they need it most? Will institutions’ fear of lawsuits cause them to withdraw all support for reproductive care, forcing students to suffer alone?
Legislators can and should take many actions to make students and higher-education workers feel safer about reproductive care on campus. Closing the Ferpa loophole is an obvious first step.
