Texas Attorney General Ken Paxton took legal action against the Department of Health and Human Services (HHS) and its Secretary Xavier Becerra, for the alleged legitimacy of a new HHS final rule about reproductive healthcare privacy. The rule, HIPAA Privacy Rule to Aid Reproductive Health Care Privacy, was issued on April 22, 2024, in response to the overturning of Roe v. Wade and aims to reinforce privacy protections for legally provided reproductive medical care.
Roe v. Wade was a landmark Supreme Court decision in 1973 that established a constitutional right to abortion before fetal viability. Roe was pregnant in 1971 when she filed a class action lawsuit to challenge the constitutionality of a Texas statute that prohibited abortion when such a procedure is needed i.e. to save a mother’s life. However, the Supreme Court overturned this ruling in 2022, ending nearly 50 years of federal abortion protections and allowing individual states to decide on abortion regulations. Presently, 22 states, including Texas, have passed legislation that heavily restricts or bans abortions. Texas, in particular, has implemented one of the strictest laws, permitting private citizens to sue anyone involved in aiding abortion procedures after six weeks of pregnancy.
In response to these legal restrictions, some women have been traveling out of state for abortions. However, doing so carries legal risks, as some states, including Texas, may seek to prosecute individuals or those assisting them in obtaining an abortion outside their home state. To address privacy concerns, the HHS published a rule prohibiting the use or disclosure of protected health information (PHI) when it is intended to enforce legal liability on individuals or medical providers involved in lawful provision of reproductive health care. Before releasing any PHI potentially related to reproductive healthcare, HIPAA-covered entities must now acquire a signed attestation ensuring the PHI request is not for prohibited purposes — a procedure which is to be included, if not yet already, in the HIPAA training requirements.
Attorney General Paxton’s lawsuit seeks to overturn this rule, arguing that it violates HIPAA’s intent, which allows states to conduct investigations. Paxton contends that the HHS does not have the authority to direct healthcare providers to refuse cooperation with state investigations into medical procedures, including abortions. He claims the final rule undermines Texas’s ability to enforce its laws. This rule goes against Congress’s clear intent when HIPAA was enacted and shows the Biden Administration’s disregard for the law. The federal government should not be allowed to undermine Texas’s legislation and its enforcement.
