A recent state Supreme Court decision could be just the beginning of a broader legal fight to expand abortion access in Wisconsin.
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A Planned Parenthood clinic in Salt Lake City, Utah, is pictured on Wednesday, July 31, 2024. (Photo by McKenzie Romero/Utah News Dispatch)
WASHINGTON — The federal government cannot withhold Medicaid funding from Planned Parenthood for at least the next two weeks, after a district court judge issued a temporary restraining order the same day the organization filed a lawsuit.
Republicans included language in their “big, beautiful bill” that would block Medicaid payments from going to Planned Parenthood for the next year, a move that would effectively prevent enrollees in the state-federal health program for lower income people from visiting any of its clinics for routine health care.
The ban began when President Donald Trump signed the bill into law on Friday.
Congress already bars federal funding from going to abortion services with limited exceptions.
Planned Parenthood filed a lawsuit over the change in federal law Monday in U. S. District Court for the District of Massachusetts and quickly requested the temporary restraining order, which was issued later that day.
The suit alleges Planned Parenthood was singled out “in order to punish them for lawful activity, namely advocating for and providing legal abortion access wholly outside the Medicaid program and without using any federal funds.”
The filing also says more than 1 million Medicaid enrollees go to Planned Parenthood in a given year and that the organization received more than one-third of its total aggregate revenue from Medicaid reimbursement during fiscal year 2023.
District Court Judge Indira Talwani’s brief two-page temporary restraining order called on the Trump administration to file a status update later this week. And she set an in-person hearing later this month to hear from Planned Parenthood and the Trump administration.
Talwani was nominated to the bench by former President Barack Obama.
The Trump administration has yet to file any documents in the case and the Department of Health and Human Services did not immediately respond to a request for comment from States Newsroom about the judge’s temporary restraining order.
Attorney General Pam Bondi indicated during a Cabinet meeting Tuesday afternoon that the Department of Justice plans to challenge the temporary restraining order.
“Absolutely, yes. We’re on it,” Bondi said.
Planned Parenthood Federation of America, Planned Parenthood League of Massachusetts and Planned Parenthood Association of Utah — the three groups that filed the lawsuit — wrote in a statement they were “grateful that the court acted swiftly to block this unconstitutional law attacking Planned Parenthood providers and patients.
“Already, in states across the country, providers and health center staff have been forced to turn away patients who use Medicaid to get basic sexual and reproductive health care because President Trump and his backers in Congress passed a law to block them from going to Planned Parenthood. There are no other providers who can fill the gap if the ‘defunding’ of Planned Parenthood is allowed to stand. The fight is just beginning, and we look forward to our day in court.”
Family planning clinics in Wisconsin are facing funding cuts under the massive law signed by President Donald Trump last week.
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The Wisconsin Supreme Court’s liberal majority struck down the state’s 176-year-old abortion ban on Wednesday, ruling 4-3 that it was superseded by newer state laws regulating the procedure, including statutes that criminalize abortions only after a fetus can survive outside the womb.
The ruling came as no surprise given that liberal justices control the court. One of them went so far as to promise to uphold abortion rights during her campaign two years ago, and they blasted the ban during oral arguments in November.
The statute Wisconsin legislators adopted in 1849, widely interpreted as a near-total ban on abortions, made it a felony for anyone other than the mother or a doctor in a medical emergency to destroy “an unborn child.”
The ban was in effect until 1973, when the U.S. Supreme Court’s landmark Roe v. Wade decision legalizing abortion nationwide nullified it. Legislators never officially repealed it, however, and conservatives argued that the U.S. Supreme Court’s 2022 decision to overturn Roe reactivated it.
Wisconsin Attorney General Josh Kaul, a Democrat, filed a lawsuit that year arguing that abortion restrictions enacted by Republican legislators during the nearly half-century that Roe was in effect trumped the ban. Kaul specifically cited a 1985 law that essentially permits abortions until viability. Some babies can survive with medical help after 21 weeks of gestation.
Lawmakers also enacted abortion restrictions under Roe requiring women to undergo ultrasounds, wait 24 hours before having the procedure and provide written consent and receive abortion-inducing drugs only from doctors during an in-person visit.
“That comprehensive legislation so thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion,” Justice Rebeca Dallet wrote for the majority.
Sheboygan County District Attorney Joel Urmanski, a Republican, defended the ban in court, arguing that it can coexist with the newer abortion restrictions.
Dane County Circuit Judge Diane Schlipper ruled in 2023 that the 1849 ban outlaws feticide — which she defined as the killing of a fetus without the mother’s consent — but not consensual abortions. Abortions have been available in the state since that ruling, but the state Supreme Court decision gives providers and patients more certainty that abortions will remain legal in Wisconsin.
Urmanski had asked the state Supreme Court to overturn Schlipper’s ruling without waiting for a decision from a lower appellate court.
The liberal justices all but telegraphed how they would rule. Justice Janet Protasiewicz stated on the campaign trail that she supports abortion rights. During oral arguments, Dallet declared that the ban was authored by white men who held all the power in the 19th century. Justice Jill Karofsky likened the ban to a “death warrant” for women and children who need medical care.
A solid majority of Wisconsin voters in the 2024 election, 62%, said abortion should be legal in all or most cases, according to AP VoteCast. About one-third said abortion should be illegal in most cases, and only 5% said it should be illegal in all cases.
In a dissent, Justice Annette Ziegler called the ruling “a jaw-dropping exercise of judicial will.” She said the liberal justices caved in to their Democratic constituencies.
“Put bluntly, our court has no business usurping the role of the legislature, inventing legal theories on the fly in order to make four justices’ personal preference the law,” Ziegler said.
Urmanski’s attorney, Andrew Phillips, didn’t respond to an email. Kaul told reporters during a news conference that the ruling is a “major victory” for reproductive rights.
Heather Weininger, executive director of Wisconsin Right to Life, called the ruling “deeply disappointing.” She said that the liberals failed to point to any statute that explicitly repealed the 1849 ban.
“To assert that a repeal is implied is to legislate from the bench,” she said.
Planned Parenthood of Wisconsin asked the Supreme Court in February 2024 to decide whether the ban was constitutional. The court dismissed that case with no explanation Wednesday.
Michelle Velasquez, chief strategy officer for Planned Parenthood of Wisconsin, said Wednesday’s ruling creates stability for abortion providers and patients, but she was disappointed the justices dismissed the constitutional challenge. She hinted that the organization might look next to challenge the state’s remaining abortion restrictions.
Kaul said he has no plans to challenge the remaining restrictions, saying the Legislature should instead revisit abortion policy.
Democratic-backed Susan Crawford defeated conservative Brad Schimel for an open seat on the court in April, ensuring liberals will maintain their 4-3 edge until at least 2028. Crawford has not been sworn in yet and was not part of Wednesday’s ruling.
Abortion figures to be a key issue again next spring in another race for a state Supreme Court seat. Chris Taylor, a state appellate judge who served as Planned Parenthood of Wisconsin’s policy director before a stint as a Democratic legislator, is challenging conservative Justice Rebecca Bradley.
Taylor’s campaign sent out an email Wednesday calling the ruling a “huge victory” and asking for donations. She issued a statement calling the decision the correct one and blasting Bradley’s dissent as “an unhinged political rant.”
Bradley wrote that the four liberal justices fancy themselves “super legislators” and committed “an affront to democracy.”
Wisconsin Watch is a nonprofit and nonpartisan newsroom. Subscribe to our newsletters to get our investigative stories and Friday news roundup. This story is published in partnership with The Associated Press.
Wisconsin Supreme Court strikes down state’s 1849 abortion ban is a post from Wisconsin Watch, a non-profit investigative news site covering Wisconsin since 2009. Please consider making a contribution to support our journalism.
Wisconsin's 19th-century abortion ban is no longer in effect, the state Supreme Court ruled Wednesday.
The post Wisconsin Supreme Court strikes down 19th-century abortion ban appeared first on WPR.
The seven members of the Wisconsin Supreme Court hear oral arguments. (Henry Redman/Wisconsin Examiner)
In a 4-3 decision, Wisconsin Supreme Court ruled Wednesday that the state’s 1849 law banning abortion had been “impliedly repealed” by the Legislature when it passed laws over the past half century “regulating in detail the ‘who, what, where, when, and how’” of abortion.
The Court’s majority opinion, authored by Justice Rebecca Dallet and joined by Justices Ann Walsh Bradley, Jill Karofsky and Janet Protasiewicz, finds that the Legislature could not have passed laws regulating abortion access if the 1849 statute was believed to remain in effect.
“This case is about giving effect to 50 years’ worth of laws passed by the Legislature about virtually every aspect of abortion including where, when, and how health-care providers may lawfully perform abortions,” Dallet wrote. “The Legislature, as the peoples’ representatives, remains free to change the laws with respect to abortion in the future. But the only way to give effect to what the Legislature has actually done over the last 50 years is to conclude that it impliedly repealed the 19th century near-total ban on abortion, and that [the statute] therefore does not prohibit abortion in the State of Wisconsin.”
Dallet wrote that when the Legislature passed laws restricting abortion under narrower circumstances, guiding “where, when and how” health care providers could perform an abortion and outlining how public money could fund abortion providers, it was repealing the 1849 law.
The ruling comes three years after the U.S. Supreme Court overturned Roe v. Wade, the landmark Court ruling that found there was a constitutional right to abortion access and marks the conclusion of a legal dispute that helped Protasiewicz win election to the Court in 2023 and Susan Crawford win election this April.
In response, the Court’s three conservative justices filed dissents, accusing the majority of “propaganda,” “smoke-and-mirrors legalese” and “pure policymaking.”
“The majority’s smoke-and-mirrors legalese is nothing more than ‘painting a mule to resemble a zebra, and then going zebra hunting. But paint does not change the mule into a zebra,’” Justice Annette Ziegler wrote. “Those in the majority know better, but they do so anyway because they like the result and promised to deliver it.”
In his dissent, Justice Brian Hagedorn wrote that the majority failed to show when the law was presumably repealed by the Legislature, saying that the opinion doesn’t properly address the Legislature’s actions in 2011 and 2015 amending the 1849 law.
“The majority does not say when over those 40 years the Legislature once and for all repealed [the statute],” he wrote. “Was it when the Legislature passed a postviability ban? A partial-birth abortion ban? A twenty-week ban? A waiting period? A physician licensing requirement? The majority fails to say.”
Following the ruling’s release, the state’s Democratic elected officials and abortion access activists celebrated the decision as a “win” for reproductive health care in the state.
“Thanks to our lawsuit, today’s decision affirms that access to reproductive healthcare will continue to be available, helping ensure Wisconsin women today are not forced to face firsthand what it’s like to live in a state that bans nearly all abortions, even in cases of rape and incest,” Gov. Tony Evers said in a statement. “Today is a win for women and families, a win for healthcare professionals who want to provide medically accurate care to their patients, and a win for basic freedoms in Wisconsin, but our work is not over. I will continue to fight any effort that takes away Wisconsinites’ reproductive freedom or makes reproductive healthcare, whether birth control, abortion, IVF, or fertility treatments, any less accessible in Wisconsin than it is today. That is a promise.”
Attorney General Josh Kaul, who brought the lawsuit against the law, said at a Wednesday morning news conference that the decision was an important step toward ensuring all Wisconsinites have the freedom to access abortion care, but that the Legislature should step up and further clarify the law.
“I thought we were right on the law. The arguments we made have now been vindicated,” Kaul said. “But at a time when the rights of Wisconsinites and Americans are under threat, this case is a stark reminder of how important it is that we fight for our rights, that we advocate for what is in the best interest of the people of our state, and that we stand on the side of freedom. Here today, we were able to achieve a significant victory for the freedom of Wisconsinites.”
Wisconsin’s state and federal Democratic lawmakers responded to the ruling by saying it wasn’t enough, promising to continue working to codify abortion access in law.
U.S. Sen. Tammy Baldwin said she will continue to work to enact her proposal to ensure women across the country have access to abortion care.
“Today’s ruling tells women across Wisconsin that we will not go back,” Baldwin said. “Today’s ruling tells women that our government trusts you to make decisions about your own body and your future. Today’s ruling tells women in our state that they are not second-class citizens. But, this fight is not over. Every woman, in every zip code, in every state deserves the same rights and freedoms. I will not stop fighting until we make that a reality and pass my bill to restore the right to abortion nationwide and allow women to make their own health care decisions without interference from judges or politicians.”
State Sen. Lisa Subeck (D-Madison) said the Legislature must now pass a bill guaranteeing the right to an abortion.
“Now that the courts have made it clear that Wisconsin does not have a total abortion ban, we must go further,” Subeck said. “It’s time to protect reproductive rights not just in practice, but in law. We must pass the Abortion Rights Restoration Act to guarantee the right to abortion and eliminate the medically unjustified, politically motivated restrictions that still exist in our state statutes. The people of Wisconsin deserve nothing less than full access to safe and legal reproductive health care without unnecessary barriers and free from judgement.”
In a concurring opinion, Karofsky wrote that interpreting the 1849 law as banning abortion gives the state the authority to “exert total control” over women and “strips women and pregnant people of the dignity and authority to make intimate and personal choices by exposing medical professionals who perform abortions to 15-year prison terms.”
In her opinion, Karofsky details the history of abortion access in the U.S. and highlights four women who died because of restrictive abortion bans, including the recent deaths of two Black women in Georgia and a Honduran immigrant in Texas as well as the death of her own great-grandmother in Boston in 1929.
“I tell the stories of Amber, Candi, Josseli, and my great-grandmother Julia to remind us that severe abortion restrictions operate like death warrants,” Karofsky wrote. “Under such restrictions women, children, and pregnant people are denied life-saving medical care while medical professionals are forced to sit idly at their bedsides, unable to do their jobs. Extreme abortion restrictions revive a time in our history driven by misogyny and racism, divorced from medical science; it is a world that must be left behind.”
In her dissent, Justice Rebecca Bradley accused Karofsky of rewriting history to achieve a desired outcome in the case.
“Not content with effacing the law, Chief Justice Jill Karofsky rewrites history, erases and insults women by referring to mothers as ‘pregnant people,’ slanders proponents of the pro-life perspective, and broadcasts dangerously false narratives about laws restricting abortion,” Bradley wrote. “Laden with emotion, steeped in myth, and light on the law, the concurrence reads as a parody of progressive politics rather than the opinion of a jurist.”
Rachel Castor, a single mom of two and teacher, stands outside her home in Sandpoint, Idaho. Castor’s son could not be admitted to the local hospital during an asthma attack because Bonner General Health lost its pediatrician coverage at the same time it closed the labor and delivery unit in 2023 following the Dobbs decision. (Photo by Erick Doxey for States Newsroom)
Editor’s note: This report examines the impact of the U.S. Supreme Court decision that struck down the federal right to abortion three years ago.
Of all the outcomes Rachel Castor could have predicted from Idaho’s abortion ban, her teenage son being denied hospital admission during an asthma attack wasn’t on the list.
Bonner General Hospital in Sandpoint announced its decision to end obstetric services in March 2023, roughly six months after the near-total ban took effect. Among the stated reasons were the state’s legal and political climates concerning health care, and the loss of pediatrician staffing.
Castor saw the fallout from that decision on a night in early April. Her 17-year-old son spent several hours in the Bonner General emergency room, before the staff informed her if his breathing didn’t improve enough for discharge by the morning, he would need to be transferred an hour south to the hospital in Coeur d’Alene. Bonner General had no pediatricians.
“And I was like, ‘Excuse me?’” Castor said.
Elaine Gloeckle, a 66-year-old Boise resident, said she started having trouble with urinary tract infections and hormonal balances recently and found it hard to get an appointment to see a specialist, even with a referral. It was even more difficult to see a doctor for gynecological care. That wasn’t always the case in the more than 30 years she’s lived in the area — she used to have no trouble seeing doctors.
But now for the gynecology visits, along with care for diabetes management and kidney issues, she has seen physician assistants, who are supervised by the doctors within a practice. While she has had good experiences with the assistants, it’s sometimes difficult to feel confident in their assessments when she isn’t sure how much they are consulting with doctors. And the wait times are still long — at least six weeks, usually, in her experience.
“I have no idea who the doctors are, I’ve never met them,” Gloeckle said. “And I don’t know if that means anything, or if it’s just peace of mind that there is a doctor in the mix.”
It’s been three years since the U.S. Supreme Court issued the Dobbs ruling that ended federal abortion protections and allowed more than a dozen states to implement abortion bans. States that were already struggling with physician shortages say they’re getting worse, especially in rural areas, where many labor and delivery units have also closed their doors. Clinics have closed and resources become more strained with every passing year.
Patients and providers have been left to adjust to barriers accessing abortion care; legal battles that continually redraw access lines; and heartbreak and tragedy as women die from easily treatable conditions like miscarriage and infection.
In places like Florida, Kansas and Louisiana, patients have had to find other providers who will help them with miscarriage complications, often requiring them to travel to a neighboring state with legal access because doctors in states with bans are afraid to see them. Other patients experiencing miscarriage or the threat of miscarriage have reported waiting hours in emergency rooms to be seen while hospital staff consult with attorneys about their legal exposure before taking any action. A Florida Republican lawmaker who opposes abortion said recently that she waited hours to receive treatment for an ectopic pregnancy, which is dangerous and nonviable.
Besides Texas, few states that implemented abortion bans after Dobbs have been as much of a spectacle as Idaho. Between a so-called “abortion trafficking” law that first passed in Idaho, the very public loss of many OB-GYNs and maternal-fetal medicine specialists, and a legal fight with the federal government over whether abortions should be permitted in emergencies — a lawsuit that made its way before the U.S. Supreme Court — the state has been a testing ground of sorts for how a near-total abortion ban can play out for communities.
Many health care providers and advocates warned it wouldn’t just be abortion care, or even pregnancy-related care, that would be affected by the Dobbs decision. Dr. Stacy Seyb, a maternal-fetal medicine specialist in Boise, said in July 2023 that the near-total ban would lead to more consequences as time went on.
“It feels like a step backward in improving the health of women and children in the state,” he told The Guardian. Soon, he warned, the state would “see a collapse in women’s health care.”
Bonner General Health’s obstetrics unit was one of many rural hospitals that was already struggling before Dobbs with changing community demographics that meant lower birth rates and difficulty recruiting and retaining physicians. Among its population of about 10,000, the hospital admitted fewer than 10 pediatric patients in 2022 and delivered 265 babies, a decrease from prior years.
It’s a familiar situation nationwide. More than 100 hospitals across 26 states have closed labor and delivery services since 2020. To be sure, the reasons for those closures include many more factors than abortion bans, such as low reimbursement rates from Medicaid programs for obstetrical services and difficulty recruiting and retaining physicians.
In its announcement, Bonner General representatives said they tried to recruit active and retired pediatrics providers in the area, but no long-term sustainable solutions were available.
At that time, it didn’t sink in for Castor that having no pediatrician coverage at the hospital would mean no admission to the hospital for minor children.
Sandy Brower, director of quality and risk management at Bonner General Health, told States Newsroom via email that their staff is well-equipped to see pediatrics patients, who are always seen, treated and stabilized in the emergency department. But she confirmed that the hospital does not admit minors because they have no pediatricians on staff.
“This approach is not unusual in rural health care,” Brower said. “Around the country, critical access hospitals often rely on stabilization and transfer protocols to ensure that patients … are seen in the most appropriate setting.”
Faced with the prospect of driving her son to Coeur d’Alene herself or guessing what a 44-mile ambulance ride might cost, Castor — a single mom of two and a teacher — decided to drive to the hospital she’d never been to before. But with little information to go on about the transfer process, she was left wandering around the hospital looking for the right place to go while her son’s condition deteriorated.
“He’d already been away from the hospital for an hour for the drive, and he was starting to not do OK, and it was really stressful because I didn’t know what we were supposed to do,” Castor said. “He had his arms wrapped around himself and he just didn’t look good.”
Once she found her way, Castor said everything went well and they were discharged after one more night. But she was left shaken by the experience and her sense of stability about where she lives. She shares custody with a former partner who lives nearby, so it’s difficult to consider moving.
“I think everyone at the hospital is lovely, but it does seem like we don’t have all the services we need,” Castor said. “It makes me wonder what else we’ve lost that we don’t know about.”
Amid the implementation of the abortion ban, Idaho’s population exploded. Between 2020 and 2024, more than 152,000 people moved in and the total number crossed 2 million statewide for the first time in its history. On top of all that, at least three clinics that provided labor and delivery services closed, including two in the Boise area, the most populous portion of the state. The combination created longer wait times and more complicated staffing scenarios.
Christine Myron, spokesperson for Idaho’s largest health care system St. Luke’s, told States Newsroom via email that the time to get an appointment with an OB-GYN has increased over the last two years in all of their service areas, which include every region of the state.
Myron also said in recent weeks, a candidate for a pediatrician position declined their offer because of the restrictive obstetrical care environment in Idaho. She said the difficulties in recruiting extend to every specialty of physicians because young families hesitate to move in.
As of Wednesday, St. Luke’s had 10 pediatric physician vacancies, including specialists for pediatric nephrology, oncology, infectious disease and endocrinology.
For women like Cynthia Dalsing, who has lived in Sandpoint for more than 30 years, it’s difficult because of her age and location. She is 71, and a recent exam showed a polyp in her uterus that needed to be biopsied and removed. That type of exam and procedure could have been done 3 miles away from her house a few years ago, she said, before Bonner General closed its labor and delivery services.
Instead, she drove back and forth to Coeur d’Alene to complete pre-operative steps, including X-rays, blood work and an EKG, then to have the procedure, then to go back again to talk about the results.
“It’s taken weeks to get care that normally would be pretty routine,” Dalsing said. “It’s a 20-minute procedure.”
The procedure was dilation and curettage, Dalsing said, often referred to as a D&C, which is the same treatment sometimes used for an early abortion or miscarriage where pregnancy tissue needs to be removed from the uterus. When she mentioned the upcoming appointment to a friend, Dalsing said they asked if that was still allowed, given the abortion ban, not knowing it’s a common procedure for many other conditions.
“That’s how clueless and confused people are about all this,” Dalsing said.
Younger women like 36-year-old Danielle Young, who has lived in Boise since the early 2000s, report issues receiving care as well. Young said since 2016, she has switched providers five times because they kept leaving — three of those were within the past three years.
Young said she had to wait eight months for an annual gynecological wellness appointment with a nurse practitioner, and when the time came, the exam felt rushed and chaotic. After that, she decided to switch practices. Young said it took another six months to be seen by the doctor she chose, but it has been worth the wait.
At the same time, Young said she and her husband are trying to conceive, and he has had difficulties finding a clinic where he can get fertility testing. She said most of the past year has been wasted just trying to reach someone on the phone who can tell them where he should go and when he can get an appointment.
“It’s been frustrating for us, because we would like to have children or a child, and I’m getting older,” Young said.
Wisconsin justices will determine whether a near-total abortion ban can remain in effect on Wednesday.
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Former Democratic President Joe Biden’s administration added the 2024 rule prohibiting disclosure of protected reproductive health information for criminal, civil or administrative investigations to the Health Insurance Portability and Accountability Act or HIPAA. (Connect Images for Getty Images)
A 2024 federal rule that shielded reproductive health information from disclosure to law enforcement when care was legally obtained, such as in another state with abortion access, was struck down by a federal judge in Texas on Wednesday evening.
U.S. District Judge Matthew Kacsmaryk of Texas’s decision applied nationwide, nullifying the rule immediately. Kacsmaryk had temporarily blocked its enforcement against Dr. Carmen Purl, who sued HHS because she said the rule created a conflict with the laws requiring her to report child abuse.
“Striking down this critical rule is cruel,” said Maddy Gitomer, senior counsel at Democracy Forward, in an emailed statement. “The 2024 HIPAA Privacy Rule has helped protect pregnant people and health care providers from invasive government intrusion into private medical information.’’
The rule did not allow disclosure of protected health information for criminal, civil or administrative 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.
Two other cases challenging the same rule are still pending in federal courts in Tennessee and Missouri, but it’s unclear what Kacsmaryk’s decision means for those cases, or another Texas lawsuit led by Attorney General Ken Paxton that also seeks to strike down a broader 2000 privacy rule.
Former Democratic President Joe Biden’s administration added the rule to the Health Insurance Portability and Accountability Act, a 30-year-old federal law meant to protect patient health information, especially when that information travels between providers. The law contains exceptions for when information can be disclosed to investigators, who can subpoena records for a law enforcement matter. After the 2022 Dobbs decision returned abortion regulation to the states, prompting more than a dozen to pass abortion bans, advocates worried that such records could be used by state officials and law enforcement to investigate and prosecute patients seeking an abortion and those who help them.
Lauren Paulk, senior research counsel for If/When/How, a nonprofit that provides legal support for reproductive health care, told States Newsroom on Wednesday evening that people are still protected by the federal HIPAA law, including the foundational 2000 privacy law that requires certain procedural steps to be met before records can be subpoenaed. The 2024 rule was meant to provide reassurance to patients who are afraid to seek abortion or gender-affirming care, even where it is legal, by specifically exempting those records.
Kacsmaryk’s decision, she said, will erode trust between patients and providers and potentially damage that relationship. And it could be a sign of more actions to come.
“There’s a laundry list of things that I think could start to be added here whenever the courts are saying there really aren’t protections for private reproductive health information,” Paulk said.
Democracy Forward, a nonprofit legal organization, filed a filed a motion to intervene earlier in the case on behalf of the cities of Columbus, Ohio, and Madison, Wisconsin, because attorneys said they no longer had faith that the U.S. U.S. Department of Health and Human Services would adequately defend the law under Republican President Donald Trump’s administration. Kacsmaryk denied that motion to intervene, and Democracy Forward appealed that decision to the 5th U.S. U.S. Circuit Court of Appeals. That appeal is pending.
“Vacating this regulation will be detrimental to the privacy rights of pregnant people across the country, and will interfere with the ability of healthcare providers and patients to communicate confidentially and openly about a patient’s health needs,” Gitomer said.
Gitomer said Democracy Forward will continue to explore all of its options to defend reproductive rights from “political interference and anti-abortion extremists.”
Purl is the sole owner of Dr. Purl’s Fast Care Walk In Clinic in Dumas, Texas. In court documents, she said:
“I consider both a pregnant woman and her unborn child to be human persons, and both are entitled to medical care and deserve the protection of the law. I believe … that elective abortions harm patients’ health and public health.”
The location of Purl’s clinic put her in Kacsmaryk’s district, where he is the only judge. Most federal cases are assigned randomly to a group of judges in a district, but since Kacsmaryk, a Trump appointee, is the sole jurist, some advocates and attorneys have accused law firms like Alliance Defending Freedom, who is representing Purl in the case, of “judge shopping.” That phrase refers to finding a plaintiff in a certain area for the purpose of putting it in front of an ideologically friendly judge.
In an earlier high-profile case, Kacsmaryk attempted to order the U.S. Food and Drug Administration to rescind its decades-old approval of mifepristone, one of two drugs used to terminate early pregnancies and treat miscarriages. That decision was eventually returned by the U.S. Supreme Court to a lower court for consideration.
Officials in Texas have already attempted to investigate women who left the state, which has a near-total abortion ban and other abortion-related laws, to terminate a pregnancy.
In a 65-page opinion, Kacsmaryk said the U.S. Department of Health and Human Services’ leadership under Biden “invoked HIPAA as a shield against abortion-restrictive states.” He determined the rule unlawfully limited disclosures about abuse and public health to state authorities, and said it exceeded statutory authority because it employed HIPAA to impose special rules for abortion. Such action should only be taken by Congress, he said, especially because the issues at hand are of major political significance.
“People of good faith vehemently disagree on both these issues,” Kacsmaryk wrote, referring to abortion and gender-affirming care. “These issues transcend politics, implicating anthropology, philosophy, and concepts of self. … The 2024 rule creates special rules for information about these politically favored procedures that implicate fundamental and hotly debated questions.”
People protest on June 24, 2022, in front of the U.S. Supreme Court after the release of the ruling in Dobbs v Jackson Women's Health Organization that overturned Roe v Wade case and erased a federal right to an abortion. (Photo by Brandon Bell/Getty Images)
Two years ago Megan Kling and her husband were eagerly looking forward to the birth of their third child. Then at 20 weeks they got devastating news from their doctor.
The infant, upon being born, would have no chance of surviving. He lacked critical internal organs and his brain and heart were both abnormal.
“Our baby would die, either in utero or within hours after birth,” Kling told reporters Monday morning. “We were in a situation with no good outcome.”
To carry him for another four months, knowing that he would not live, “seemed inhumane,” Kling said.
The diagnosis was confirmed at 22 weeks — and by then, Kling said, her doctors were unable to help her because of an 1849 Wisconsin law that at the time was still being interpreted as a near-blanket ban on abortion.
Kling and her husband, residents of western Wisconsin, traveled to neighboring Minnesota. There, doctors at the Mayo Clinic in Rochester confirmed that, if born, their baby would not be viable. At her request, the medical team induced labor at 23 weeks. Kling gave birth and the couple’s son died in their arms an hour later.
Kling told her story Monday at a news conference held by advocates to draw attention to next week’s third anniversary of the U.S. Supreme Court ruling ending a national right to abortion.
Dr. Nike Mourikes of the Committee to Protect Health Care said from the moment the ruling was issued, “I realized how this cruel decision would cause harm to so many lives and undermine the ability of physicians and other health care providers to care for their patients.”
Abortion was a legal right throughout her medical training and practice until the 2022 decision in Dobbs v. Jackson Women’s Health Organization, Mourikes said.
The Court’s 1973 ruling in Roe v. Wade legalized abortion in the first 20 weeks while placing some limits on the procedure later in pregnancy. Although Mourikes had heard “the horror stories” of what women had experienced before that decision, she said, “I never imagined that we would ever, ever go back to those days again.”
As a physician, she has cared for many women who sought abortion to end a pregnancy. “Each woman had her own unique history, her own unique reasons and circumstances that led her to make this complex decision,” Mourikes said. “But that choice was her choice, not the government’s, not a politician’s. It was her body and it was her right.”
The 2022 ruling effectively reinstated Wisconsin’s 1849 law, which at the time was widely seen as a near-blanket abortion ban.
A September 2023 Dane County Circuit Court ruling reversed that assumption, with the judge holding that the law applied to feticide, but not to elective abortions. A decision on that ruling is now pending in the Wisconsin Supreme Court.
Nevertheless, the law “casts a shadow over our state,” Morikes said. Republican lawmakers have been unwilling to repeal the law, and even when Roe v Wade was still in effect, enacted laws “that force doctors to practice medicine not for the good of their patients, but to satisfy anti-abortion politicians.”
Those include a requirement for “an invasive, sometimes painful and medically unnecessary ultrasound” before an abortion, she said, as well as “a medically unnecessary 24-hour waiting period” that requires women to visit a health provider two days in a row before having an abortion.
Sydney Andersen, a government relations specialist for Planned Parenthood Advocates of Wisconsin, said Planned Parenthood has succeeded in returning abortion services to Wisconsin since the Dane County ruling.
But the organization faces new challenges, she said. Those include the budget reconciliation bill that passed the U.S. House last month and is now in the Senate. A provision in the bill prevents Planned Parenthood from accepting Medicaid coverage for low-income patients.
Planned Parenthood at risk of closing hundreds of clinics, drastically limiting abortion access
If the U.S. Senate enacts the provision and it becomes law, “more than 1 million patients across the United States could lose their access to birth control, wellness exams, vaccines, STI [sexually transmitted infection] testing, and cancer screenings, including over 50,000 patients in Wisconsin alone,” Andersen said. Black women, other people of color, rural residents and other low-income families would experience “the most significant impact,” she said.
Kling, who is 34 and described herself as a working mother, said she was telling the story of her third pregnancy to make the point that “abortion restrictions can impact anyone who can become pregnant.”
In an interview, Kling told the Wisconsin Examiner that she had not been politically engaged before the experience.
“I was always pro-choice, but after going through this experience I wanted to utilize my story to help people understand that this can impact anyone,” she said.
Despite the current circuit court ruling, the current state of Wisconsin law is such that hospitals “will always create policy that is more restrictive than what the law allows,” Kling said. “There’s a lot of gray area in our law right now with the politics.”
In the news conference, Kling described the emotions that washed over the couple in the hour that she and her husband held their dying infant.
“Our son only knew love,” she said. “But as parents, those were the most helpless and traumatic moments that we have ever had to endure.”
Kling said she tried to contact her Republican state lawmakers in hopes of raising their awareness about the effect of the current state of abortion restrictions. Her state representative has not responded to her calls or email messages, and her state senator’s aide said he was “too busy to schedule a 10-minute meeting to hear my story,” she said.
“Are they unwilling to understand what real women are going through or do they simply not care?” Kling said. “Is this the reality you want the women of Wisconsin to face? Forcing us to flee our state for care?”
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Several Planned Parenthood clinics in Wisconsin could close if a provision in the U.S. House of Representatives' budget bill is passed by the Senate.
The post Half of Planned Parenthood of Wisconsin revenues could dry up under GOP budget bill appeared first on WPR.
A decision is imminent in three of the four cases that will determine whether individual health information for legal reproductive care remains protected by a 2024 federal rule.
Dr. Eve Espey has many stories she can tell about patients who travel to her clinic in New Mexico from their homes in Texas, where abortion laws are some of the most restrictive in the country.
In one recent case, Espey said a patient flew from Texas to Albuquerque for an abortion after her doctor advised that an autoimmune disease she has made being pregnant incredibly dangerous. At the same time, she had an IUD placed as future contraception.
Shortly after returning home, the patient had some cramping and discomfort that prompted her to have the placement of the IUD checked and make sure it hadn’t moved. But her doctor turned her away because she’d had an abortion.
“She flew back to New Mexico to get her IUD examined,” Espey told States Newsroom.
In this case, Espey’s patient voluntarily told her doctor that she’d had an abortion. But if a rule exempting reproductive health information from law enforcement investigations is struck down or altered by one of three federal cases brought by Republican attorneys general from more than a dozen states, that information could become mandatory to disclose.
A decision is imminent in three of the four cases that will determine whether individual health information for legal reproductive care remains protected by a 2024 federal rule under the Health Insurance Portability and Accountability Act (HIPAA), including a case in Texas before the same judge who tried to revoke government approval of an abortion drug.
The plaintiffs in the cases, which include 17 states that heavily restrict or outright ban abortion, say the rule undermines their state rights to investigate waste, fraud and abuse. Chad Kubis, spokesperson for Tennessee Attorney General Jonathan Skrmetti, told States Newsroom via email that the office could not comment because of the ongoing litigation. But the complaint in the case led by Tennessee said, “The final rule will hamper states’ ability to gather information critical to policing serious misconduct like Medicaid billing fraud, child and elder abuse, and insurance-related malfeasance.”
HIPAA is a federal law passed nearly 30 years ago to protect the privacy and security of patient health information, especially as that information travels between clinics in an increasingly all-digital world. It includes some exceptions under limited conditions, such as law enforcement investigations. After the 2022 Dobbs decision returned abortion regulation to the states, prompting more than a dozen to pass abortion bans, advocates worried that such records could be used by state officials and law enforcement to investigate and prosecute patients seeking an abortion and those who help them.
Former Democratic President Joe Biden’s administration sought to remedy those concerns by adding a rule to the HIPAA law in 2024 restricting disclosure of the information. Meanwhile, states with legal abortion passed their own shield laws to protect providers and patients from out-of-state investigations.
In New Mexico, doctors like Espey are protected by a shield law that covers patients, providers and those who help someone obtain an abortion. Even with that, Espey worries and makes sure she’s careful with the notes she puts into writing. Lawmakers in New Mexico have considered going further with the shield law to require patient consent for any release of reproductive health records, but that could become an issue in emergencies.
“That is a colossal barrier to a provider,” Espey said. “Somebody could come into the ER and you can’t access the fact that they had an abortion two days ago.”
Lauren Paulk, senior research counsel for If/When/How, a nonprofit that offers legal support to those seeking reproductive health care, said the rule is important to keep intact because it helps patients and providers feel safe. Without it, more people will be turned away from clinics and hospitals, she said.
“Since Dobbs, there have been documented cases of at least seven people who have died in part because they were afraid to seek care or were denied care. We know that patients see these stories too,” Paulk said. “We also run a help line, so we hear people calling in every day who are scared to seek health care.”
For many years, people have considered health privacy to be a basic right, Paulk said, and have taken it for granted that when they see a doctor, the information shared will be confidential. But she said it’s vital that it stays that way.
“Having the state involved in health care poisons the well of the patient-provider relationship,” Paulk said. “When I go to my health care provider and I can’t be frank with them, it means I’m not going to get care to the extent that I need.”
Since Republican President Donald Trump’s administration took office in January and Secretary Robert F. Kennedy Jr. is now at the helm of U.S. Health and Human Services, the agency that administers the rule, the suits have become more complicated, including how the government is responding to each case.
They are:
State of Missouri v. U.S. Department of Health and Human Services: Republican Missouri Attorney General Andrew Bailey filed this lawsuit in January, claiming that the rule infringes on state powers to investigate fraud, abuse and public health violations. U.S. District Judge John A. Ross, who was appointed by former Democratic President Barack Obama, is weighing the Trump administration’s request to dismiss the case for lack of standing.
State of Tennessee v. HHS: Republican Tennessee Attorney General Jonathan Skrmetti filed this lawsuit in January, also claiming that the rule infringes on state powers of investigation. Republican attorneys general in 14 other states joined as plaintiffs. U.S. District Judge Katherine A. Crytzer, an appointee of Republican President Donald Trump, has been asked by the Trump administration to dismiss the case for lack of standing or grant the states’ request to block the rule.
Purl, M.D. v. HHS: Dr. Carmen Purl, the sole owner of Dr. Purl’s Fast Care Walk In Clinic in Dumas, Texas, sued in October because she said the rule creates a conflict with the laws requiring her to report child abuse. The case is before U.S. District Judge Matthew Kacsmaryk, an appointee of Republican President Donald Trump. Kacsmaryk granted a preliminary injunction, but is expected to rule soon on a permanent injunction.
State of Texas v. HHS: Republican Texas Attorney General Ken Paxton sued in September, claiming the 2024 rule violates state investigative authority. Paxton argued the underlying 2000 HIPAA rule should be struck down as well — a move that could open many more avenues for state investigations if it is granted. U.S. District Judge James Wesley Hendrix, a Trump appointee, has given the federal health agency two extensions of time to decide whether they want to rescind and rewrite the rule.
The judges presiding over the cases in Missouri and Tennessee, as well as the Purl case in Texas, could issue decisions at any time Missouri filed its lawsuit alone, while 14 other states with Republican attorneys general joined Tennessee’s lawsuit as plaintiffs: Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Louisiana, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota and West Virginia. All but three of those states either heavily restrict or outright ban abortion, and if the lawsuits are successful, records kept by doctors and pharmacists in other states could be subpoenaed.
If the underlying 2000 HIPAA privacy rule is somehow altered by court rulings in Texas, it could have even more effects, Paulk said. If/When/How receives phone calls from therapists living in states with abortion bans who are afraid of facing criminal charges just for talking about abortion with a patient, or for not reporting a person considering an abortion to the police, she said. That’s not true under existing laws, but if privacy rules change, records like therapy notes could also be subject to investigation.
“It’s clear to me that the folks who are pursuing the overturn of these laws and the folks who are in states where they’re trying to get access to health information are seeking to criminalize people and further stigmatize health care like abortion and gender-affirming care,” Paulk said. “They want people to be afraid to access care and providers to be afraid to provide it, and they’re using this specter of punishment to do that.”
DOJ asked two courts to dismiss Republican-led lawsuits
Democracy Forward, a nonprofit legal organization, is representing the cities of Columbus, Ohio, and Madison, Wisconsin, and Doctors for America, and has attempted to intervene in all four cases — Kacsmaryk denied the request, but the other three are still pending. If any of the motions are granted, attorneys for Democracy Forward could defend the rule, because they do not think the DOJ attorneys will adequately defend it, said Carrie Flaxman, the nonprofit’s senior legal adviser.
The cities and Doctors for America filed a friend-of-the-court brief after Kacsmaryk’s denial, arguing that HIPAA is vital to protecting patient confidentiality, including the 2024 rule.
At the end of March, Trump’s Department of Justice attorneys asked the federal courts in Missouri and Tennessee to dismiss the cases for lack of standing, saying the states have not demonstrated any harm.
“Missouri’s complaint vaguely alleges that the rule impedes state investigations and requires the state to expend resources to comply with the rule’s requirements,” the motion to dismiss says. “But absent from the complaint are any concrete facts supporting these conclusory assertions of harm, which one would expect to see if the rule truly posed the risks that the state alleges.”
In Texas, Kacsmaryk ordered the Department of Justice to provide an update about the health services agency’s review of the Biden-era rule in May, and asked if they wished to pause the court proceedings while they conduct that review. Acting Assistant Attorney General Yaakov Roth told the court in a brief that the rule remains “under consideration” but no imminent action on the rule is expected. He added that they were not requesting any pause in the case.
That response differed in Paxton’s suit, which was already on hold. DOJ attorneys asked for more time to “evaluate the agency’s position in this case and determine how best to proceed.” The judge granted the extension, and another update is expected in July.
“Blocking either or both of these rules could pave the way for government investigations by Attorney General Paxton or others and threaten the foundations of medical privacy that we all rely on,” Flaxman said. “Patients nationwide should be concerned about investigations … into the most personal of their medical records.”
An expert on the history of the abortion debate joined WPR's "Wisconsin Today" to discuss her new book on the anti-abortion movement's push for fetal personhood.
The post Wisconsin and other states have laws establishing fetal personhood. What could that mean for abortion access and IVF? appeared first on WPR.
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