A 2024 provision under the Health Insurance Portability and Accountability Act (HIPAA) protects reproductive health information from disclosure to law enforcement when care was legally obtained, such as in another state with abortion access. (Photo by Dave Whitney/Getty Images)

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.

Planned Parenthood has about 600 clinics in 48 states, and according to their calculations, more than 1.1 million patients could lose access to care because of a provision in the massive budget bill signed by President Donald Trump last week. (Photo by McKenzie Romero/Utah News Dispatch)

Days after President Donald Trump signed a massive budget bill, attorneys for Planned Parenthood Federation of America and its state members in Massachusetts and Utah filed a lawsuit Monday challenging a provision they say will affect more than 1 million patients who use their clinics across the U.S.

Planned Parenthood says if the defund provision stands, those targeted will be patients who use Medicaid as their insurance at its centers for services including birth control and cancer screenings. The organization says it only uses federal Medicaid funding for abortion in the very narrow cases allowed, including rape, incest, and to save a pregnant person’s life.

The complaint, filed in U.S. District Court of Massachusetts against U.S. Health and Human Services Secretary Robert F. Kennedy Jr. and Medicaid and Medicare administrator Dr. Mehmet Oz, challenges a provision on page 597 of the reconciliation bill. It prohibits Medicaid funding from going to any sexual and reproductive health clinics that provide abortions and received more than $800,000 in federal and state Medicaid funding in fiscal year 2023. That prohibition will last one year from the date the bill was signed.

While there may be a few independent clinics with operating budgets that high, it effectively singles out Planned Parenthood clinics. The entire organization has about 600 clinics in 48 states, and according to their calculations, more than 1.1 million patients could lose access to care because of the change in the law.

“This case is about making sure that patients who use Medicaid as their insurance to get birth control, cancer screenings, and STI testing and treatment can continue to do so at their local Planned Parenthood health center, and we will make that clear in court,” said Planned Parenthood Federation of America president and CEO Alexis McGill Johnson in a public statement.

The organization identified 200 of its clinics in 24 states that are at risk of closure with the cuts, and said nearly all of those clinics — 90% — are in states where abortion is legal. In 12 states, approximately 75% of abortion-providing Planned Parenthood health centers could close. Because of that, some reproductive health advocates have called it a backdoor nationwide abortion ban.

The nonprofit also warned that eliminating Planned Parenthood centers from the Medicaid program would likely also impact patients who use other forms of insurance, if centers are forced to cut their services or close. 

Planned Parenthood argued this section of the bill is unconstitutional because it specifies and punishes them, saying it violates equal protection laws and qualifies as retaliation against free speech rights. 

“The Defund Provision is a naked attempt to leverage the government’s spending power to attack and penalize Planned Parenthood and impermissibly single it out for unfavorable treatment,” the complaint says. “It does so not only because of Planned Parenthood members’ long history of providing legal abortions to patients across the country, but also because of Planned Parenthood’s unique role in advocating for policies to protect and expand access to sexual and reproductive health care, including abortion.”

The complaint also details numerous instances when Trump said he was committed to defunding Planned Parenthood in 2016 and 2017, during his first presidential term, and it highlighted the provisions of Project 2025 that called for the defunding of Planned Parenthood. Project 2025 is the blueprint document drafted by the conservative Heritage Foundation, and the administration has followed many of its directives so far.

According to the lawsuit, Planned Parenthood members have “structural independence,” meaning no member “has control over the operations or decision-making processes of another.” It’s argued in the complaint that 10 members, including plaintiff Planned Parenthood Association of Utah, don’t meet the definition of prohibited entity under the new law, because they do not provide abortion services or did not receive over $800,000 in Medicaid funds during fiscal year 2023. They say these members are not “affiliates, subsidiaries, successors, or clinics” of any prohibited entity because they are separately incorporated and independently governed.

“But these Non-Qualifying Members can take no comfort in the plain text of the statute,” reads the lawsuit. “Defendants will willfully misinterpret the statute to disqualify them from receiving federal Medicaid funding, based solely on their association with PPFA and other Planned Parenthood Members.”

“As the Trump administration guts our public health care system, we know millions will suffer and struggle to get care. We will not tolerate these attacks,” said Shireen Ghorbani, interim president of Planned Parenthood Association of Utah, in a statement. “For over 55 years, we have proudly cared for generations of Utahns, and we will always find ways to meet the health care needs of our communities. Here in Utah, we are used to politicians trying to strip away our rights for political gain. We haven’t backed down before, and we won’t now.”

Defunding will harm general wellness, not abortion care, Arizona clinic owner says

Planned Parenthood also noted in its complaint that the harms could be especially devastating because “even where alternative providers are theoretically available, those providers, who are already stretched to capacity, often do not offer the same comprehensive sexual and reproductive health service options, have long wait times for patients, and cannot accommodate the huge influx of patients who would need to find a new provider of care.”

Some clinics that operate independently of Planned Parenthood will be affected by the law as well. George Hill, president and CEO of Maine Family Planning, said they receive nearly $2 million from Medicaid funds (MaineCare) on a yearly basis, and about half of their patients are enrolled in some form of Medicaid. Hill said they plan to sue as well, but the timing is uncertain at this point. Abortion care makes up about 15% of their overall services, while the rest is routine gynecological and preventative health care, he said.

In the meantime, Hill plans to solicit as much support as possible from individual donors to keep the doors to their 19 clinics open and serving Medicaid patients.

“Whether or how long we’ll be able to do that is another question,” Hill said.

In Arizona, Dr. DeShawn Taylor operates the independent clinic Desert Star Institute for Family Planning. About 75% of the services at Desert Star are abortion related, and while Medicaid (AHCCCS in Arizona) dollars can’t be used for the procedure, Taylor said they could often at least get the initial consultation appointment covered by Medicaid.

The cuts that are coming, Taylor said, will not stop people from obtaining an abortion somehow. But there will be other downstream effects.

“People are already economically depressed,” she said. “What we’re going to see is people are still going to do what’s necessary to get (abortion) care, but what’s going to fall off is their ability to get their preventative care, their contraception, their wellness exams, those types of things.”