HIPAA Reproductive Health Care Privacy - New Administration Evaluating Its Position

As the Trump administration stakes dramatically new positions on matters across the federal government, we are waiting to learn its view on the HIPAA Privacy Rule to Support Reproductive Health Care Privacy Final Rule, published in April, 2024 (“2024 Reproductive Privacy Rule,” 89 Fed. Reg. 32976).¹ We may now have to wait longer for its official position. In a lawsuit filed by the Texas Attorney General against the U.S. Department of Health and Human Services (HHS) to block the 2024 Reproductive Privacy Rule, if not all of the HIPAA Privacy Rule,² the court had required the parties to file opposition briefs to cross-motions for summary judgment by March 7, 2025. However, on January 31, 2025, the court granted HHS’s request to “hold all current deadlines in abeyance to allow incoming leadership personnel at [HHS] additional time to evaluate their position in this case and determine how best to proceed.” The parties are to provide a status report by May 1, 2025.

It also is significant that two cities (Columbus, Ohio and Madison, Wisconsin) and a doctor’s group (Doctors for America) seek to intervene in the case to defend the 2024 Reproductive Privacy Rule and the Privacy Rule as a whole, believing that “the government is unlikely to defend the Privacy Rules after President-Elect Donald J. Trump takes office.”  The order holding the case in abeyance also suspends the parties’ responses to the motion to intervene.

Quarles previously wrote about another lawsuit challenging the 2024 Reproductive Privacy Rule, brought by Dr. Carmen Purl and Dr. Purl’s Fast Care Walk In Clinic. As of late December, the federal district court hearing that case had temporarily protected Dr. Purl and the Clinic (but no one else) against enforcement of the 2024 Reproductive Privacy Rule. On January 17, 2025, days before the inauguration, HHS went on record to defend the 2024 Reproductive Privacy Rule by filing a motion to dismiss and, in the alternative, for summary judgment. The plaintiffs also seek summary judgment. Most recently, the same cities and doctor’s group that want to defend the 2024 Reproductive Privacy Rule in the case brought by Texas seek to intervene in this case, as well. The next briefs on the motions for summary judgment are due on February 17, 2025. We have not seen a motion for abeyance filed yet, but we would expect HHS to take the same position as in the State of Texas case.

Not to leave it all to Texas, fifteen other states filed a separate lawsuit against HHS on January 17, 2025. In an action in the Eastern District of Tennessee, the states of Tennessee, Alabama, Arkansas, Georgia, Idaho, Indiana, Iowa, Louisiana, Montana, Nebraska, North Dakota, Ohio, South Carolina, South Dakota and West Virginia seek to set aside the 2024 Reproductive Privacy Rule (but not the 2000 Privacy Rule). They argue that the rule “will hamper States’ ability to gather information critical to policing serious misconduct like Medicaid fraud, child and elder abuse, and insurance-related malfeasance.”

At this time, no court has entered a generally applicable order preventing enforcement of the 2024 Reproductive Privacy Rule (other than against Dr. Purl and the Purl Clinic). By its terms, the rule remains in effect and enforceable by the HHS Office of Civil Rights. The HHS Fact Sheet about the obligations of HIPAA covered entities under the rule remains posted on the HHS website; however, clicking on the link for HIPAA and Reproductive Health returns “Page Not Found.”

Quarles earlier alerts on this topic are linked below:

• Happy Halloween: RIP to the HIPAA Privacy Rule?
• Compliance Eve Ends with HIPAA Reproductive Health Privacy Rule Order out of Texas: But is it a Gift or Lump of Coal for Regulated Entities? 

If you have a question regarding the HIPAA Privacy Rule to Support Reproductive Health Care Privacy Final Rule or this area in general, please contact your Quarles attorney or:

• Dan Guggenheim: (619) 822-1474 / dan.guggenheim@quarles.com
• Simone Colgan Dunlap: (602) 229-5510 / simone.colgandunlap@quarles.com

Please visit our Federal Policy Watch: Monitoring White House Developments page for more insight about navigating changes at the federal level.

END NOTES

¹ Please see our earlier client alert about the 2024 Reproductive Privacy Rule and the State of Texas’s challenge, here.

² In asking for remedies, the Texas AG challenges all of the 2000 HIPAA Privacy Rule (65 Fed. Reg. 82462), although elsewhere in the complaint the AG indicates an intent to more narrowly challenge only the portion of the rule that addresses disclosures to state investigators. The Texas AG’s Demand for Relief (page 16 of the Complaint) asks the court to vacate and set aside the entirety of the 2000 Privacy Rule; however, in the second paragraph of the Complaint, the Texas AG explains that the lawsuit challenges the portion of the 2000 Privacy Rule that addresses disclosures of health information to state investigators (45 C.F.R. § 164.512(f)(1)(ii)(C)). We expect this ambiguity to be resolved by amended pleadings, if the case continues.