Judge overturns Biden-era HHS rule on HIPAA protections for those seeking reproductive care

A federal judge on Wednesday overturned key aspects of a Biden-era Department of Health and Human Services (HHS) rule bolstering privacy protections for personal health information related to abortion and gender-affirming care.

The 2024 rule — which updated the Health Insurance Portability and Accountability Act (HIPAA) — addressed worries that patients visiting abortion clinics and other reproductive care facilities could have their records seized by law enforcement even if their procedure was legal in the state where it took place.

The new rule came in response to the Supreme Court’s 2022 Dobbs decision stripping women of the constitutional right to an abortion.

The Texas federal district judge who overturned the Biden-era rule said its implementation exceeded HHS’s authority because updates to HIPAA, which protects health data in many instances, require congressional authorization.

Judge Matthew Kacsmaryk also said the Biden-era rule violated states’ rights and was political in nature.

“HIPAA confers authority to promulgate regulations protecting individually identifiable health information,” Kacsmaryk’s opinion said. “But it confers no authority to distinguish between types of health information to accomplish political ends like protecting access to abortion and gender-transition procedures.”

HHS did not immediately respond to a request for comment.

The ruling does not strip all protections from people seeking reproductive care, and it does not affect HIPAA in other ways, experts said.

"Even after the judge’s ruling, HIPAA protections still apply to medical records that include reproductive health information, it's just that they won’t get heightened protections put forth in this rule,” Carmel Shachar, faculty director at the Health Law and Policy Clinic at Harvard University’s Center for Health Law and Policy Innovation, said via email.

Aspects of the Biden rule created red tape for providers, according to Adam Greene, a partner at Davis Wright Tremaine specializing in health care law.

“The vacating of the rule … will significantly lessen the compliance burden on regulated entities,” Greene said via email.

He predicted that many states permitting abortions will respond to the court’s decision by enacting shield laws to “similarly restrict disclosures of related information out of state.”