In the wake of the U.S. Supreme Court’s decision in Dobbs, State Health Officer of the Mississippi Department of Health et al. v. Jackson Women’s Health Organization, et al., colleges and universities have been left to determine how the elimination of the federal constitutional right to abortion impacts their provision of reproductive health services (“RHS”) to their students. Many colleges and universities either directly provide RHS through their campus health clinic or refer students to external providers. In light of the Dobbs decision, colleges and universities nationwide will need to analyze whether their applicable state laws or institutional policies restrict their ability to provide RHS and if so, understand the impact of those restrictions. Below are some of the key considerations for campus health clinics at institutions of higher education in the aftermath of Dobbs.
State Laws and Institutional Policies
As a starting point for analyzing the impact of Dobbs on educational institutions, we recommend that institutions of higher education conduct a review of applicable state laws to determine what, if any, RHS are newly restricted by their state laws post Dobbs. Certainly, if there are new restrictions under a particular state’s laws, the campus health clinic will need to inform its providers and patients.
It is important to note that not all state laws will restrict RHS in that some states have enacted laws which afford greater protection to providers who provide RHS. just prior to the Dobbs decision, the Connecticut legislature passed Public Act 22-19 which expands the types of providers who can perform abortions, creates new protections for medical records concerning RHS, and provides additional legal protections for Connecticut RHS providers and those traveling to Connecticut for RHS care. Specifically, under PA 22-19, nurse-midwives and physician assistants are permitted to perform abortions, disclosure of medical records of RHS in the civil litigation context is not permitted without written consent of the patient, andthe extradition of individuals from Connecticut to other states for performing legal RHS in Connecticut that may be illegal in the state seeking extradition is prohibited. PA 22-19 also permits a provider to seek reimbursement for a judgment entered against them in another state for performing RHS in Connecticut that are legal in Connecticut, such as under Texas or Oklahoma’s civilian-enforced abortion bans.
Some states have enacted laws that affirmatively impose obligations on colleges and universities with respect to the provision of RHS. For instance, this past July, Massachusetts passed legislation directing public colleges and universities to submit a medication abortion readiness plan outlining how they intend to provide medication abortions or assist their students in receiving such abortions. Additionally, California passed legislation in 2019 that directed the University of California and California State University to provide medication abortions across their respective campuses.
In addition to applicable state laws, colleges and universities may also have specific institutional policies and procedures that impose limitations on their health clinic’s ability to provide RHS to students. For instance, the University of Idaho issued new guidance in response to the state’s abortion ban triggered by Dobbs, directing its faculty and staff not to offer birth control or promote abortion to students.
Providing Services to Out-of-State Students
Educational institutions located in states where abortion is legal may continue to provide RHS to their students in compliance with their respective state’s laws, even if a student is from a state where RHS have been restricted. Colleges and universities should be mindful, however, that doing so could create threats of criminal and/or civil liability for a student from a state where abortion is illegal, although attempts to impose liability on such out of state students will likely be challenged based on the constitutional right to interstate travel, as suggested by Justice Kavanaugh in his concurring opinion in Dobbs. Whether such attempts to criminalize such interstate travel for purposes of seeking RHS will be successful remains to be seen, but Justice Kavanaugh opined that “the answer is no.”
Helping Students Travel Out-of-State to Receive RHS
Colleges and universities located in states where abortion and other RHS are illegal should exercise caution in assisting or referring students to travel out-of-state to obtain abortions in states where it is legal, as it may be considered unlawful aiding and abetting an abortion in violation of civilian-enforced statutes enacted in states such as Oklahoma and Texas.
Further complicating matters, campus health clinics may see lawsuits similar to that filed against the State of Idaho concerning whether state laws prohibiting abortion must carve out “necessary stabilizing treatment” provided by a hospital for an “emergency medical condition” under the federal Emergency Medical Treatment and Labor Act (“EMTALA”). Therefore, campus health clinics may need to consult with the institution’s legal counsel to reconcile state and federal laws.
Privacy of Student Health Records and Other Medical Information
In providing RHS, health clinics operated by educational institutions must continue to adhere to their legal obligation to maintain the privacy of student records, including student medical information. Under the federal Family Educational Rights and Privacy Act (“FERPA”), educational institutions that receive funds from the U.S. Department of Education (“DOE”) are required to maintain the confidentiality of a student’s education records. FERPA defines the term “education record” broadly to include any information directly related to a student that is recorded and maintained by the educational institution, which can include a wide range of student health and other medical information. Although FERPA generally requires a student’s (or parent’s) signed written consent in order to disclose a student’s education records, there are a number of exceptions under FERPA that permit an educational institution to disclose a student’s education records (including health or medical information) for specific circumstances, which are enumerated within FERPA. For example, FERPA permits disclosure of education records without consent in instances where there is an articulable health and safety emergency and permits disclosure to other “school officials,” who have a legitimate educational interest in the records. FERPA also permits disclosures of education records to parents of students 18 years of age or older if the student is considered a dependent for tax purposes. Because FERPA permits, but does not require, such disclosures under these exceptions, discretion should always be used in these instances to protect the student’s privacy. Educational institutions should also take this opportunity to revisit who they have designated as “school officials” in their internal policies and in their annual notification of rights, taking into consideration which such officials may have “legitimate educational interests,” in student health information.
In the postsecondary context, it is also important to note that FERPA has special rules for student records directly related to medical treatment provided by certain medical providers on behalf of the school. More specifically, FERPA excludes from the definition of education records any of these “treatment records,” which are further defined to mean records that pertain to a student 18 years of age or older, or who is attending an institution of post-secondary education, which are made or maintained by a physician, psychiatrist, psychologist, or other recognized professional and which are made, maintained, or used only in connection with the treatment of the student. Unlike education records, “treatment records” for a college student have different use and disclosure rules and may be disclosed without the student’s consent only to individuals providing medical treatment to the student, or disclosed to third parties outside of the institution who are not providing medical treatment to the student only with the student’s written authorization. Thus, treatment records may not be shared without student consent in the same way as education records, including to other school officials who are not involved in the student’s treatment.
The following is a clarification of the applicability of FERPA and the Health Information Protection and Accountability Act of 1996 (“HIPAA”) with respect to campus treatment records.
FERPA applies to most public and private postsecondary institutions and therefore governs the confidentiality and disclosure of education records, including any “treatment records” maintained by campus health clinics and other health care facilities operated by such institutions. Both education records and treatment records are excluded from coverage under the HIPAA Rules, even if the school health clinic or other health care facility operated by the school is a HIPAA covered entity. See 45 CFR § 160.103 (definition of “protected health information,” ¶¶ (2)(i), (ii)). While the health records of students maintained by postsecondary institutions may be subject to FERPA, if the educational institution is a HIPAA covered entity and provides health care to nonstudents, the individually identifiable health information of the nonstudent patients is subject to the HIPAA Rules. Thus, for example, postsecondary institutions that are subject to both HIPAA and FERPA and that operate clinics or other health care facilities open to staff, the public, or both (including family members of students) are required to comply with FERPA with respect to the health records (i.e., “education records” or “treatment records”) of their student patients, and with the HIPAA Rules with respect to the health records (i.e., PHI) of their nonstudent patients.
See, Joint Guidance on the Application of the Family Education Rights and Privacy Act (FERPA) and theHealth Insurance Portability and Accountability Act of 1996 (HIPAA) to Student Health Records issued by the DOE and U.S. Department of Health and Human Service (“HHS”).
While both FERPA and HIPAA limit disclosure of health records and other medical information that may relate to an individual, both FERPA and HIPAA permit the disclosure of such records in order to comply with a lawfully issued and regulatory compliant subpoena or court order. Notwithstanding, post Dobbs, if a court order or subpoena is issued to a college or university campus health clinic seeking records or information relating to RHS obtained by a particular student, the campus health clinic should seek advice from counsel with respect to compliance, because an out-of-state subpoena may not be enforceable in the campus health clinic’s state, or a state law may have been newly enacted in the campus health clinic’s state that imposes a stricter privacy standard than has been historically applied vis-à-vis HIPAA.
Implications of Title IX Protections for Pregnancy and Related Conditions
Title IX is the federal law that prohibits recipients of federal funding from discriminating on the basis of sex. Most public and private colleges and universities receive federal funding and are therefore subject to the requirements and obligations imposed under Title IX. While the Trump Administration’s 2020 Title IX regulations are still in full force and the governing legal standard, in May 2022, the Biden Administration proposed new Title IX regulations. Under the Biden Administration’s proposed regulations, pregnancy and pregnancy-related conditions, including childbirth, termination of pregnancy, and recovery therefrom, are explicitly protected from discrimination.
The codification of pregnancy and pregnancy-related conditions under Biden’s proposed Title IX regulations will likely inform the way schools treat this population of students. For example, if colleges and universities limit access to abortion pills, this could be considered sex-based discrimination under Title IX. A college or university may also be found to have engaged in sex-based discrimination if it does not provide accommodations to pregnant students or students with pregnancy-related conditions such as allowing students to miss class due to the pregnancy or pregnancy-related condition.
These proposed regulations are significant in the post-Dobbs environment, as they could give rise to a new category of Title IX complaints and liability for colleges and universities. At the same time, it is unclear if or how colleges and universities located in states that restrict or ban abortions will be permitted to provide RHS related to abortions. To the extent the codification of pregnancy and pregnancy-related conditions make it into the final Title IX regulations, colleges and universities located in such states will likely need to adhere to federal law, rather than contradictory state law, in accordance with the supremacy clause of the U.S. Constitution.
In the interim, the Biden Administration, through the Office for Civil Rights, published additional guidance relating to discrimination based on pregnancy and related conditions. The new guidance prohibits schools from discriminating against or excluding students from their program or activity based on a student’s “pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom,” a definition mirroring that of the proposed rule. The new guidance also states that schools must have a leave policy for students who are pregnant or with a pregnancy-related condition, and that this leave policy must ensure that students are reinstated to the status the student held when their leave began. Recipients of Title IX funds should review this new guidance with legal counsel and ensure that their policies and practices are compliant.
While there is much unknown in the aftermath of Dobbs, what is known is that colleges and universities across the nation must continue to examine their policies and procedures related to RHS for students, as well as the policies that relate to the records of RHS provided to students. Shipman & Goodwin will continue to monitor developments in this area to help inform and assist our education clients as they navigate the increasingly complex area of RHS. In the meantime, it is important to review your state’s laws, update institutional policies in response to any changes in applicable state law, understand limitations on your institution’s ability to provide RHS through on campus health clinics, keep students and staff abreast of institutional policy changes, and remain informed of Title IX changes and applicable guidance from the Biden Administration.
As new developments arise, we will continue to update our Dobbs Decision Resource Center. In the meantime, if you have any questions, please contact one of the lawyers in Shipman’s Health Law or Education practice groups.