Texas Is Fighting to Access Out-of-State Abortion Medical Records

Pushed out of Texas after the state’s abortion ban went into impact, supplier Dr. Lauren Thaxton nonetheless sees at the very least one affected person from Texas day by day. At her new ob-gyn apply in Colorado, Thaxton treats a stream of people who find themselves pressured to trek out of state for abortion care. After the autumn of Roe, nearly one in five patients in the US should now cross state traces to acquire care. Already burdened with the stress of journey and a medical process, her Texas sufferers usually specific “deep worry” {that a} member of the family, a accomplice, or the state will uncover that they obtained an abortion upon their return. Even working beneath an interstate shield law doesn’t totally allay considerations for Thaxton or her Texas sufferers.

“They’re petrified of criminalization from their dwelling state, although they’ve simply undergone one thing fully authorized,” Thaxton tells The Nation. “They’re even petrified of telling their very own ob-gyns or main medical doctors again in Texas out of worry it’ll one way or the other be used towards them. It’s heartbreaking.”

Within the wake of the Supreme Court docket’s Dobbs determination, Melanie Fontes Rainer has heard related tales from many suppliers like Thaxton. As head of the Workplace for Civil Rights on the US Division of Well being and Human Providers, Fontes Rainer traveled all around the nation to satisfy with healthcare suppliers in each banned and authorized states. They share nervousness over the specter of their sufferers’ medical data being disclosed with out permission, and used to probably punish them down the road. Suppliers in authorized states inform her they’re already seeing requests for affected person information from out-of-state officers.

“Suppliers and sufferers need their lawful medical information protected against fishing expeditions,” says Fontes Rainer. “They don’t need this delicate data weaponized towards them.”

In response to those pervasive fears, the Biden administration’s Division of Well being and Human Providers issued a brand new measure earlier this 12 months that strengthens the Health Insurance Portability Act (HIPAA). The long-standing medical privateness legislation traditionally included an exception that allowed healthcare suppliers to show over medical information to legislation enforcement. The new rule closes that loophole for sufferers who search abortion care in authorized states, prohibiting healthcare suppliers, insurers, and states from giving reproductive care data to prison or civil investigations. Girls who search fertility therapies, contraception, or miscarriage care may also be protected. States have been given till December to conform.

“I imagine this is likely one of the extra consequential actions this administration has taken in response to the lack of Roe v. Wade,” Fontes Rainer tells The Nation. “The belief between a physician and a affected person is critically vital. The very last thing a affected person ought to have to fret about is whether or not their medical information will probably be saved personal.”

That rule change would offer much-needed safety for pregnant sufferers in any of the 21 abortion-hostile states like Texas, which carries one of the vital restrictive abortion bans within the nation. The state has lived beneath a draconian near-total ban since 2021—which was bolstered by a criminal ban in 2022—forcing some 35,000 residents to hunt care out of state. And its leaders have aggressively sought to bar abortion procedures even in life-threatening circumstances. In Texas, suppliers may face life in jail for violating the legislation.

Nevertheless, Texas right-wing officers have just lately mounted a legal challenge to the federal coverage in an effort to entry the personal medical information of sufferers who search abortion care throughout state traces. Legal professional Normal Ken Paxton is main the cost nationally amongst 18 different attorneys normal who signed a formal letter to the well being division in opposition to the adjustments final June. Paxton argues that the brand new rule—in addition to the unique HIPAA privateness guidelines from 2000—restrict the state’s authority to conduct investigations.

“The Biden Administration’s motive is evident: to subvert lawful state investigations on points that the courts have stated the states could examine,” stated Paxton in a press release. “The federal authorities is making an attempt to undermine Texas’s legislation enforcement capabilities, and I cannot enable this to occur.”

The lawsuit displays Texas’s ongoing “disregard” for federal reproductive rights protections within the post-Roe world, says Greer Donley, a legislation professor on the College of Pittsburgh who focuses on abortion rights. The state equally challenged the Biden administration’s push in 2022 to make sure hospitals carry out emergency abortion care beneath the federal Emergency Medical Therapy and Labor Act (EMTALA), amid a number of stories of sufferers nearly dying after being denied well timed procedures. In early October, the US Supreme Court docket declined to listen to the case, leaving a block on emergency abortions in place for Texans as an identical lawsuit out of Idaho proceeds within the Ninth Circuit.

“I’m usually shocked by the actions of Texas officers in the case of abortion rights, and that is no exception,” Donley tells The Nation. “They’re saying the state ought to have the authority to outline federal privateness guidelines, not the federal authorities. This actually highlights how excessive they’re. They’re telling us ‘we need to be essentially the most aggressive state on limiting abortion care, even exterior our borders.”

Texas has already signaled its curiosity in limiting out-of-state care: Paxton is at present suing Austin, a progressive city that perennially finds itself within the crosshairs of the right-wing state authorities, for serving to its residents search care exterior Texas. Town’s Reproductive Justice Fund—the first of its kind funding within the south when it was created in 2019 —allocates $400,000 for logistical abortion journey help, like airfare, fuel, and lodge stays. And anti-abortion activists with pleasant ties to state officers have efficiently positioned an abortion travel ban on the poll for residents of Amarillo, a Panhandle city that serves as a throughway to abortion-legal states like New Mexico.

The so-called “abortion trafficking” ordinance would empower residents to file a civil lawsuit towards individuals who “support or abet” abortion and reap $10,000 in damages, much like the state’s bounty-hunter-style Senate Bill 8. The measure may apply to anybody who affords funding to somebody who passes via a metropolis to obtain out-of-state abortion care, who drives an abortion affected person to their appointment on a metropolis’s roads, and even supplies instructions to a clinic.

The ordinances not solely assist function a blueprint for future statewide legal guidelines because the Texas Legislature meets this January, but when handed in Amarillo, may carry sweeping national implications. The measure could give new life to a lawsuit looking for to ban abortion drug mifepristone, and grant the Republican-dominated Supreme Court docket a chance to think about the journey ban an extension of the archaic Comstock Act.

Furthermore, Texas’s newest authorized problem is a evident signal of the state’s march towards surveilling—and probably prosecuting—abortion-seeking residents. Whereas officers have regularly strengthened the notion that they don’t seem to be desirous about punishing pregnant sufferers, solely the suppliers who violate the legislation, advocates imagine that is merely a short lived guise. Donley stresses that the lawsuit is definitely an try by Texas to “protect their proper” to take action beneath a future Republican administration.

Elizabeth Myers has been on the entrance traces of defending threats to abortion privateness in Texas. The Dallas legal professional represents abortion funds who have been confronted with intrusive authorized calls for to hand over a large swath of delicate data, together with the names of each one who helped their purchasers entry abortion, in a swimsuit led by Jonathan Mitchell, former solicitor normal of Texas and architect of the state’s near-total ban. She considers the state’s lawsuit a “direct escalation” of those ongoing assaults and step one in eventual criminalization.

“They’ve at all times stated they received’t goal pregnant sufferers, however in actuality that’s at all times been their long-term plan, and their finish sport,” says Myers. “There isn’t a purpose for Texas to need to invalidate these federal guidelines until they intend to finally monitor—and sooner or later prosecute—Texas ladies of reproductive age.”

Prosecutors and anti-abortion states possible really feel emboldened post-Dobbs, say advocacy teams. Nationally, greater than 200 folks have been prosecuted for conduct related to being pregnant, abortion, being pregnant loss, or beginning within the 12 months after Roe was overturned, the very best variety of such circumstances in a single 12 months ever recorded, in line with a September report from Pregnancy Justice. Excessive-profile circumstances of girls charged with severe crimes after being pregnant loss, together with homicide—that have been later dismissed—have occurred in at the very least South Carolina, Ohio, and Texas.

“We all know of many cases the place legislation enforcement present as much as hospitals after being pregnant loss and insert themselves in extraordinarily personal well being eventualities,” says Lauren Paulk, senior analysis counsel at reproductive justice authorized nonprofit If/When/How. “Healthcare suppliers ought to by no means be pressured into sharing personal medical information with police and fits just like the one in Texas simply enhance the specter of criminalization.”

The Texas lawsuit cites “at the very least one occasion” through which an entity has used the HIPAA rule as a purpose it may possibly’t adjust to a state subpoena. It’s unclear what number of abortion-related medical information Texas is at present looking for. It will not be the state’s first try at demanding personal medical paperwork. After it banned transition-related take care of minors final 12 months, Paxton sought youth gender-affirming care information from well being facilities out of state, together with Washington and Georgia.

The authorized problem now sits earlier than US District Choose James Wesley Hendrix of Lubbock, who often rules against Biden administration insurance policies. And a federal enchantment to a ruling within the state’s favor could be heard by the ultraconservative US Court docket of Appeals for the Fifth Circuit, which additionally has a long history of siding with Texas anti-abortion insurance policies.

Texas would additionally definitely get a lift in its combat towards the rule if Republican presidential candidate Donald Trump and vice-presidential candidate JD Vance—who’re both open to permitting states to watch affected person pregnancies—take the helm. Their Undertaking 2025 playbook also supports severely rolling again abortion privateness protections and amassing a registry of abortion and miscarriages, amongst different extremist positions.

Suppliers like Thaxton brace for the potential of a good “extra terrifying dystopia,” for themselves and the sufferers they’re entrusted to take care of.

“It’s very scary to consider this merciless invasion of privateness, particularly once we attempt so onerous to maintain our relationship with sufferers sacred and confidential,” she says. “It’s troublesome to suppose that our information might be used to criminalize our sufferers one way or the other. It’s morally distressing. Our sufferers are already dwelling with loads of worry, I can’t think about what it might be like for them if that is upheld.”