Texas sues to to block rule shielding medical records of women who seek legal abortions elsewhere

AUSTIN, Texas -- Texas has sued the Biden administration to try to block a federal rule that shields the medical records of women from criminal investigations if they cross state lines to seek abortion where it is legal.

The lawsuit against the U.S. Department of Health and Human Services seeks to overturn a regulation that was finalized in April. In the suit filed Wednesday in Lubbock, Republican state Attorney General Ken Paxton accused the federal government of attempting to "undermine" the state's law enforcement capabilities. It appears to be the first legal challenge from a state with an abortion ban that took effect after the U.S. Supreme Court's 2022 ruling that overturned Roe v. Wade and ended the nationwide right to abortion.

The rule essentially prohibits state or local officials from gathering medical records related to reproductive health care for a civil, criminal, or administrative investigation from providers or health insurers in a state where abortion remains legal. It is intended to protect women who live in states where abortion is illegal.

In a statement, HHS declined comment on the lawsuit but said the rule "stands on its own."

"The Biden-Harris Administration remains committed to protecting reproductive health privacy and ensuring that no woman's medical records are used against her, her doctor, or her loved one simply because she got the lawful reproductive care she needed," the agency said.

Texas' abortion ban, like those in other states, exempts women who seek abortions from criminal charges. The ban provides for enforcement either through a private civil action, or under the state's criminal statutes, punishable by up to life in prison, for anyone held responsible for helping a woman obtain one.

It's not clear whether public officials have sought patient medical records related to abortion. But the state has sought records related to gender-affirming care, demanding them from at least two out-of-state health centers last year. Like many Republican-controlled states, Texas bans gender-affirming care for minors.

At least 22 Democratic-controlled states have laws or executive orders that seek to protect medical providers or patients who participate in abortion from investigations by law enforcement in states with bans.

The federal regulation in question is an update to the Health Insurance Portability and Accountability Act of 1996, which prohibits medical providers and health insurers from divulging medical information about patients. Typically, however, law enforcement can access those records for investigations.

A group of Republican attorneys general, all from states with strict abortion laws, had urged Health and Human Services to ditch the rule when a draft was released last year. In a 2023 letter to HHS, the group said the regulation would unlawfully interfere with states' authority to enforce laws.

"With this rule, the Biden Administration makes a backdoor attempt at weakening Texas's laws by undermining state law enforcement investigations that implicate medical procedures," Paxton said in a news release.

Liz McCaman Taylor, senior federal policy counselor at the Center for Reproductive Rights, said federal law has long provided enhanced protection for sensitive health information.

"But Texas is suing now, not because of its concern with state sovereignty, but because of its hostility to reproductive health," she said.