Will HIPAA protections continue for abortion care? Courts to soon decide.

by Kelcie Moseley-Morris, Georgia Recorder
June 9, 2025

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.” 

Last updated 4:21 p.m., Jun. 10, 2025

Georgia Recorder is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Georgia Recorder maintains editorial independence. Contact Editor Jill Nolin for questions: info@georgiarecorder.com.

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Note: The following A.I. based commentary is not part of the original article, reproduced above, but is offered in the hopes that it will promote greater media literacy and critical thinking, by making any potential bias more visible to the reader –Staff Editor.

Political Bias Rating: Center-Left

This article presents a perspective that largely emphasizes the protection of reproductive health privacy and critiques the actions of Republican-led state lawsuits aimed at rolling back federal privacy protections established under the Biden administration. The language highlights concerns about the potential chilling effect on patient care and frames the litigation as part of a broader effort by conservative states to restrict abortion access and related healthcare rights. While the article reports on legal actions by Republican attorneys general and includes statements from their representatives, it generally adopts a sympathetic tone toward privacy advocates, medical providers, and patients, reflecting a center-left viewpoint.