Two pending lawsuits over a 2024 federal rule protecting certain reproductive health information from disclosure are on hold while the Trump administration decides whether to appeal a Texas judge’s June decision that declared the rule unlawful and void.
U.S. District Judge Matthew Kacsmaryk issued an opinion nullifying the federal rule that shielded reproductive health information from law enforcement when care was legally obtained, such as in another state with abortion access. In this case, Dr. Carmen Purl argued that the U.S. Health and Human Services rule conflicted with the laws requiring her to report child abuse. Purl said in court documents she believes abortion and gender-affirming care fall under the definitions of child abuse.
Purl lives in the judicial district where Kacsmaryk — who has taken anti-abortion stances in the past — is the only judge. His ruling applied nationwide and took effect immediately.
Without the rule, law enforcement officials in states with abortion bans may issue subpoenas for records related to reproductive health care obtained legally in another state, as some have already recently tried to do. According to health policy nonprofit KFF, 22 states and the District of Columbia have laws limiting what reproductive health information can be obtained, but others with legal abortion access do not, such as New Hampshire and Virginia.
Abortion-rights advocates say it’s largely an intimidation tactic meant to sow fear in patients and providers. Since the Dobbs decision in 2022, anti-abortion attorney Jonathan Mitchell filed nine petitions in Texas seeking to legally question abortion funds, providers and researchers, and two individual women who sought abortions in other states, according to the Texas Tribune.
Carmel Shachar, a Harvard law professor who has extensively researched data privacy and health policy, said it’s possible for a patient to travel to a state with legal access and have that information stored in their medical records that is shared with their providers back home.
“Without the reproductive privacy rule, the concern will be, ‘OK, will some of these states that have taken a very strong stance against abortion be able to pinpoint where residents of their states travel to receive abortion care?’” Shachar said.
Tennessee plaintiffs push for separate ruling after Texas decision
Two lawsuits challenging the legality of the rule are frozen at least until the government’s Aug. 18 deadline to appeal. One case is in Missouri, and Texas Attorney General Ken Paxton filed the other. Paxton’s office had also challenged the legality of the underlying privacy rule or HIPAA established in 2000, which could have opened more avenues for state investigations if a judge agreed to throw it out. But according to recent court filings, the state is no longer asking the court to do that.
A Tennessee lawsuit includes 17 other states that heavily restrict or ban abortion as plaintiffs. Their attorneys general asked the court to find the 2024 rule unlawful because they said it impedes their right to investigate cases of waste, fraud and abuse. In the most recent court brief, attorneys for Tennessee Attorney General Jonathan Skrmetti said the case can still be decided by U.S. District Judge Katherine Crytzer, an appointee of Republican President Donald Trump.
Until judgment is affirmed on appeal and no further appellate review is available or the deadline to appeal passes, “the plaintiff states’ claims remain live and ready for this court to resolve,” the brief said.
Legal organization continues attempts to intervene so they can appeal
The Health Insurance Portability and Accountability Act (HIPAA) allows law enforcement to obtain health information for investigation purposes. But the addition of the 2024 provision under former Democratic President Joe Biden prohibited disclosure of protected health information in investigations against any person for the mere act of seeking, obtaining, or facilitating reproductive health care, to impose criminal or civil liabilities for that conduct, or to identify the person involved in seeking or obtaining that care. It also applied to gender-affirming care.
The U.S. Department of Justice did not respond to a request for comment. Whether it appeals Kacsmaryk’s ruling is in question, as the Justice Department under Trump did not address whether it thought the 2024 rule was proper and lawful prior to Kacsmaryk’s decision. Attorneys instead said they were reviewing the rule but had no other updates. In the Missouri and Tennessee cases, DOJ attorneys have argued for dismissal for other legal reasons, but also have not defended the 2024 rule itself.
In March, the DOJ dropped the case that argued the federal law mandating stabilizing emergency care should apply to those who need emergency abortion care. And in early June, U.S. Health and Human Services rescinded guidance that said that care should be required in emergencies.
Attorneys for Democracy Forward, a nonprofit legal organization, are representing Doctors for America and the cities of Columbus, Ohio, and Madison, Wisconsin, and attempted to intervene in the case because they did not expect the government to defend the rule. If they were allowed to intervene, they could appeal Kacsmaryk’s opinion striking down the rule regardless of the Trump administration’s decision.
Kacsmaryk denied their motion, while a decision in the other three cases is pending. Carrie Flaxman, senior legal adviser for Democracy Forward, said they have appealed that denial to a higher court. Given that the Department of Justice attorneys chose not to defend the rule on the merits in court proceedings, Flaxman said, she thinks they have a good argument for appeal.
Repealing the rule was a directive in Project 2025, the blueprint document for the next presidential administration published by the conservative Heritage Foundation. Several prominent anti-abortion organizations were part of the panel that drafted Project 2025, and many of the individuals involved in writing the 900-page document now work for the Trump administration.
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