Colleges Can Legally Reveal Student Abortions
Students aren’t protected by HIPAA
Since Roe was overturned, questions about how abortion bans will impact colleges have almost entirely focused on one question: What will enrollment look like in anti-choice states? It’s a valid concern—I can’t imagine female students would be eager to move to a state where they don’t have full rights, or that their parents would want to send them to such a place. But perhaps the most urgent post-Roe issue for college students has mostly flown under the national radar.
Last week, Vice President Kamala Harris met with a group of college presidents to discuss how abortion bans will impact schools and students. During that roundtable, Howard Gillman, chancellor of the University of California at Irvine, expressed concern about legal protections for students who use school health facilities. “[B]ecause the privacy protections around those student health facilities are different than the privacy protections that you see in other clinical settings,” he said.
That’s right: Students don’t have the same right to medical privacy that you or I have. In fact, college students are most often not even covered by HIPAA.
Instead, college students are ‘protected’ by the Family Educational Rights and Privacy Act (FERPA), a widely-criticized federal law. As one law professor put it, “FERPA is about as protective as cheesecloth.”
The details of the law are dense, but here’s the most important thing to know: FERPA loopholes would allow colleges to disclose student abortions. Which, in certain states, would put them at risk of arrest.
In The Chronicle of Higher Education, Katie Rose Guest Pryal, law professor at the University of North Carolina School of Law, gives this scenario: A college student is sexually assaulted at school, she seeks abortion care out-of-state where it’s legal, and tells a school counselor about it. This student decides to sue her college for mishandling her rape case, which, under FERPA, gives the administration access to her private counseling records. Anyone at the school who can argue they have an interest in her case can now read those records—be it deans, professors or campus police. This student could then be criminally prosecuted.
This isn’t just horrifying from a legal standpoint, but a moral one: FERPA essentially gives colleges the ability to retaliate against students who sue them. The consequences of which, in our new post-Roe reality, are more dangerous than ever.
Professor Pryal also points out that it’s not just the student in this hypothetical who could be at risk. Let’s say a school therapist counseled the student on how to obtain an abortion, the girl’s roommate helped her get abortion medication, and they happen to live in Texas. Later, a dean’s assistant making copies of the student’s records happens to read about that therapy session. “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,” Pryal writes.
Students’ medical privacy has already been violated in the past thanks to FERPA. A student who was raped as a freshman at the University of Oregon, for example, had her therapy notes seized by college lawyers before she filed suit against the school. “I found out months later that every single meeting I had with a therapist, she took detailed notes on, and the University of Oregon had read these notes before I had even seen them,” the student said. And in 2005, a federal court ruled that a school who notified a student’s parents about her pregnancy had not violated her privacy under FERPA.
Politicians know FERPA is inadequate to protect students; in fact, last month, Democrats urged Secretary of Education Miguel Cardona to clarify how FERPA will protect college students’ private health information in light of the Supreme Court’s abortion ruling.
We need a clear-cut answer from the Biden administration—and assurances that colleges will be held accountable—immediately.
Young people are already the most at risk from abortion bans; they’re the most likely to have unwanted pregnancies and the least financially secure. And so the absolute least we can do for college students is give them equal access to medical privacy.