Texas Sues Biden Admin. Over Privacy Rule Protecting Abortion Patients

It’s the latest move from GOP officials who want to trap people under state abortion bans—and surveil and potentially punish out-of-state abortion seekers.

By Kylie Cheung  |  September 6, 2024 | 4:31pm
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Texas Sues Biden Admin. Over Privacy Rule Protecting Abortion Patients

In April, in an effort to protect abortion patients in states where the procedure is banned, the Biden administration’s Health and Human Services Department submitted a final rule change that prohibits health care providers, insurers, and any business governed by HIPAA (the Health Insurance Portability and Accountability Act) from giving reproductive health care information to law enforcement. More specifically, the rule would prohibit a state from giving someone’s medical data to police or state officials, who could hypothetically use that information to determine whether someone left the state for an abortion, and then potentially prosecute the patient or doctor. Health care providers have until December to fully comply or they could lose federal funding.

But on Wednesday, Texas’ famously litigious attorney general, Ken Paxton (R), filed a lawsuit against the Biden administration, alleging that the rule actually violates HIPAA because the law gave states investigative rights. The lawsuit also warns that the rule change will weaken Texas’ ability to enforce its abortion ban, which says the quiet part out loud: that states that have banned abortion want to entrap people under these bans. Despite these threats, the right to interstate travel for abortion is constitutionally protected. 

“This new rule actively undermines Congress’s clear statutory meaning when HIPAA was passed, and it reflects the Biden Administration’s disrespect for the law,” Paxton said in a statement about the lawsuit. “The federal government is attempting to undermine Texas’s law enforcement capabilities, and I will not allow this to happen.”

The HHS said in its own statement that the rule change in question “stands on its own—women should be able to access legal reproductive health care without their medical records being used to track them or their doctors for liability.” Even before Dobbs v. Jackson Women’s Health overturned Roe v. Wade, there were hundreds of cases, mostly in southern states, of pregnant people being surveilled by law enforcement and sometimes charged with crimes after losing their pregnancy or self-managing an abortion. But post-Dobbs, confusion about abortion bans and frequent collusion between the medical and criminal legal systems have placed pregnant people and abortion patients (especially those traveling from banned states) at even greater criminal risk. Just last fall, an Ohio woman was reported to police by a nurse who suspected the woman self-managed an abortion. She faced a felony charge that was dropped in January.

Paxton filed the lawsuit in the small town of Lubbock, Texas, where it’s landed at the desk of U.S. District Judge James Wesley Hendrix—a Trump appointee who, per Reuters, “has often ruled against Biden’s policies.” It’s a textbook case of judge shopping, or bringing cases to anti-abortion Trump appointees. Incidentally, Lubbock is in Lubbock County—the same county that drew national attention around this time last year when its all-male county commissioners unanimously passed a measure that makes it illegal for anyone to transport someone through the county or pay for their travel for abortion-related reasons. The ordinance is largely unenforceable, but legal experts and advocates warn it will stoke fear and discourage people from traveling or helping others travel for abortions.

It doesn’t help that the Republican presidential ticket also seems to back the surveillance of traveling abortion patients. In 2023, JD Vance signed a letter rejecting the Biden administration’s then-proposed HIPAA rule change, insisting law enforcement has a right to access abortion patients’ data because, as the letter states, “abortion is not health care.” The letter further argues, “The Proposed Rule unlawfully thwarts the enforcement of compassionate laws protecting unborn children and their mothers, and directs health care providers to defy lawful court orders and search warrants.” Meanwhile, in May, Trump said he’d support states’ right to monitor people’s pregnancies to determine if they violated abortion gestation limits.

All of this is the natural conclusion of abortion bans. As the Center for Reproductive Rights’ Molly Duane told Jezebel in May, “Anti-abortion lawmakers often say they would never punish the woman, but that’s simply not true. … This is all the inevitable outcome of Roe being overturned—IVF threats, wrongful death suits, women being punished, all of it.”

 
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