Privacy concerns linger in reproductive health care despite HIPAA lawsuit’s dismissal

A Biden-era protection for reproductive and gender affirming health care information was upended by a federal judge in Texas in June. Despite several lawsuits, key privacy rules for medical records remain, but some experts say they aren’t sufficient. (Photo by Dave Whitney / Getty Images)
The four lawsuits at the center of a Republican-led effort to ensure law enforcement can access reproductive health records are now mostly resolved, after attorneys for Texas Attorney General Ken Paxton agreed last week to dismiss the last remaining suit challenging the legality of a foundational health privacy rule.
Paxton filed the lawsuit in September 2024 arguing that Democratic President Joe Biden’s administration illegally created a rule under the Health Insurance Portability and Accountability Act barring certain reproductive health care information from being disclosed if a procedure such as abortion was obtained in a state where it is legal.
The federal HIPAA law is meant to protect patient information generally, especially when that information travels between providers. It contains exceptions for information that can be disclosed to investigators, who can subpoena records from other states.
Ashley Kurzweil, senior policy analyst for reproductive health and rights at the National Partnership for Women & Families, said the dual threat that Paxton’s lawsuit presented was alarming on a much wider scale than just reproductive health care, so it is a relief that the case is dismissed. Overturning key privacy protections from 2000 that formed the basis of the Biden-era rule could have thrown the entire health care system into chaos, she said.
“We are thrilled that the 2000 privacy rule is still in effect. It is hugely important that it is still in place,” Kurzweil said. “However, (it) provides insufficient safeguards for reproductive health care information when it comes to the broader landscape of increased criminalization risk that people are facing.”
The 2024 rule specifically relating to reproductive and gender-affirming health care information was nullified in June by U.S. District Judge Matthew Kacsmaryk. His ruling came in a Texas-based case filed by a clinician in a small town who said the rule created a conflict with her responsibility to report child abuse, because she considers abortion and gender-affirming health care to be child abuse.
Without those 2024 protections, doctors can choose whether to report patients to law enforcement, Kurzeil said, and some might also be discouraged from offering reproductive health care altogether to minimize legal risks.
States Newsroom reported more than 400 people were charged with pregnancy-related crimes in the two years after the U.S. Supreme Court’s Dobbs decision, according to data from the nonprofit Pregnancy Justice.
One of those people was Brittany Watts, an Ohio woman who went to the hospital with miscarriage complications and waited for hours without receiving help. After miscarrying at home and returning to the hospital, staff called the police, accusing her of abuse of a corpse. A grand jury declined to indict her, and Watts is now suing the hospital.
In nine of the 400 cases, pregnant people were accused of researching or attempting to obtain an abortion.
Advocacy group dropped effort to appeal Texas ruling
The case before Kacsmaryk is the only one of the four that resulted in a ruling. Although it was filed in the last few months of the Biden administration, the bulk of the case was litigated under Republican President Donald Trump’s Department of Justice.
Repealing the rule was a directive in Project 2025, the conservative blueprint published by the Heritage Foundation. Several prominent anti-abortion organizations were part of the panel that drafted Project 2025, and many of the people involved in writing the 900-page document now work for the Trump administration.
Democracy Forward, a nonprofit legal organization, represented Doctors for America and the cities of Columbus, Ohio, and Madison, Wisconsin, in an attempt 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.
Their attempts were denied by Kacsmaryk, and while the organization did initially appeal that decision, the attorneys dropped the effort in September, saying in a court filing that “the resources of the parties and the courts would be best conserved by dismissing this appeal.”
In a statement to States Newsroom, a spokesperson for Democracy Forward said they will continue to pursue every tool available to defend reproductive rights from political interference and anti-abortion extremists.
The other two cases are in Missouri and Tennessee, where Republican attorneys general also challenged the 2024 reproductive health care-specific rule. The Missouri case was dismissed in September, because Kacsmaryk’s decision had a nationwide effect, and the Tennessee attorney general asked the court to dismiss their case for the same reason. The judge in that case has not yet granted the motion.
Shield laws help, but federal backstop would address more situations
Texas and Louisiana have recently launched investigations into out-of-state doctors who, through telehealth, prescribed and mailed abortion medication to patients in their states where abortion is outlawed.
Texas officials have repeatedly investigated and attempted to prosecute people for either leaving the state to seek abortion care or for prescribing abortion medication from a different state. At the end of October, a New York judge dismissed a civil case brought by Paxton seeking $100,000 in damages from a provider the AG said prescribed abortion pills to a woman in the Dallas area, according to The Texas Tribune. Officials in Louisiana attempted to extradite the same New York doctor on criminal charges related to an abortion medication prescription for a pregnant minor. That case was also rejected.
Those attempts were some of the first that tested shield laws implemented by 18 states, including New York. Four others have executive orders from Democratic governors saying they won’t comply with extradition requests for investigations into reproductive health care.
Texas has also passed a law allowing people to seek at least $100,000 in damages if someone they impregnated or someone they’re related to received abortion pills by mail from another state. That law took effect Thursday, Dec. 4.
Kurzweil said those shield laws are a vital help to patients seeking care, but the addition of a federal protective rule would be ideal.
“The two in tandem would be much more fulsome and would address gaps that come up,” she said.
This story was originally produced by News From The States, which is part of States Newsroom, a nonprofit news network which includes Wisconsin Examiner, and is supported by grants and a coalition of donors as a 501c(3) public charity.





