Texas has one of the most restrictive abortion laws in the country, banning the procedure except in limited circumstances that threaten health and life and criminalizing those who “aid and abet” women seeking one. That law has led women to travel out-of-state seeking assistance, where they are shielded by a recent federal regulation that blocks the use of their medical records in criminal or civil investigations. But the Texas state Attorney General, usually very active in seeking to protect consumer privacy, has filed a suit challenging this rule. The suit is the first of its kind and the outcome could have substantial impact on patient privacy for women residing in any state that has made abortion illegal.
Patient privacy case tests federal safeguard added in April
The Texas law forbidding abortion came online very shortly after the Dobbs decision in 2021, which reversed longstanding federal protections that required states to allow certain levels of access to the procedure. The current Texas law only allows abortions in limited cases where a mother’s life or “major bodily function” is endangered by the pregnancy. While expecting mothers cannot face criminal charges for seeking an abortion, anyone deemed to have assisted in an effort can face severe penalties. Physicians that provide an abortion can be charged with a first-degree felony carrying a prison sentence of 5 to 99 years, as well as a fine of at least $100,000. But this law can also extend to individuals in the woman’s life, such as their partner or family members, that provide more limited forms of assistance.
Accurate numbers are obviously difficult to collect given the circumstances, but estimates are that about 35,000 women left Texas to seek an out-of-state abortion last year. When they cross state lines, their medical records become protected by a Biden administration patient privacy update to the Health Insurance Portability and Accountability Act of 1996 (HIPAA) that was finalized in April of this year. If the state or localities in Texas are seeking to build a case involving a resident seeking an out-of-state abortion, these records cannot be included as evidence.
The Texas AG’s office is challenging the U.S. Department of Health and Human Services (HHS) in court, looking to have this patient privacy amendment peeled back. The AG’s basis for the challenge is essentially that the rule is a violation of state’s rights, handcuffing its law enforcement authorities. It is the first challenge of its type from a state with stringent abortion bans, but could have an impact on women residing in about a dozen other states that have similar total or near-total bans.
HHS has yet to issue a comment on the suit but has responded to media inquiries by saying that the rule “stands on its own.” There is not yet any evidence that Texas authorities have sought out-of-state medical records in such a case, but they have sought similar records to enforce a similar ban on medical interventions that involve a change of gender for children.
Out-of-state medical records yet to be used in a prosecution
Texas is not alone in having not yet sought out-of-state medical records to make a case against one of its residents; none of the other states with comparable laws have tried it yet either. Any attempt would bring several layers of legal complication, including another relevant HIPAA rule (issued in 2000) that instructs health care providers and insurers to protect patient privacy by refusing subpoenas for records unless they are requested as part of an established and legal investigation and are appropriately limited in scope. Texas is also seeking to have this rule blocked.
The state faces resistance from some of its own biggest cities, including Dallas and Houston, which have issued local orders directing officials to de-prioritize abortion-related cases and limit cooperation with state officials where possible. But it has also put the medical records case in front of a District Court judge who is a Trump appointee and has a track record of ruling against Biden administration rules.
Some individuals in Texas have taken it upon themselves to test the civil end of the new patient privacy law. A Galveston man has brought a wrongful death suit against three women in the state for allegedly assisting his former partner in obtaining medication for an abortion, and seeks $1 million in damages. Another man in Austin has petitioned a Texas court to invoke an obscure rule governing investigation of illegal activity to obtain information on who provided an out-of-state abortion to his former partner, to potentially include medical records.
Other states with abortion bans have made similarly halting efforts on obtaining out-of-state information, most of which are also presently held up by a federal judge over patient privacy concerns. Idaho has issued a ban on transporting a minor out of state for an abortion without the permission of their parents, which opponents say is a violation of interstate transit rights. Alabama’s attorney general has declared that his office intends to investigate groups that assist women in obtaining abortions, but is held up by a suit brought against the state by abortion activists that is moving forward in federal court.
