The FBI Endangers Women and Children by Violating State Laws on Abortion and ‘Gender Affirming’ Care: Lawsuits

As GOP attorneys general take a second bite at the apple in a lawsuit challenging the Food and Drug Administration’s relaxed rules for the abortion drug mifepristone, a Texas physician is suing the Department of Health and Human Services — before the same judge — for another alleged distortion of the law to privilege both abortion and so-called gender-affirming care.

HHS’s new regulation under the Health Insurance Portability and Accountability Act contradicts the statute’s own recognition of “the government’s authority to investigate abuses and require disclosures” by criminalizing HIPAA covered entities for sharing certain information with “state child welfare agencies and law enforcement agencies” at all levels, claims Dr. Carmen Purl of Texas.

It is a direct attack on the Supreme Court Dobbs decision to return abortion regulations to the states, said her lawyers at the Alliance Defending Freedom.

“The Biden-Harris administration’s illegitimate rule is weaponizing privacy laws that have nothing to do with abortion or gender identity,” and is undermining “state laws that protect mothers and unborn children from the harms of abortion, and vulnerable children from dangerous and sterilizing procedures .” Senior Counsel Julie Marie Blake said.

Roger Severino of the Heritage Foundation, who enforced HIPAA in the Trump administration, and former attorney Rachel Morrison of the Ethics and Public Policy Center, a former attorney for the Equal Employment Opportunity Commission, made similar arguments in public comments on the proposal last year .

Severino even went so far as to compare HHS to Southern states that pledged to ignore the Supreme Court’s desegregation ruling Brown v. Board of Education. He told it Just the news at the time, the proposal’s “absolutely impenetrable” language appeared “deliberately designed to confuse and mislead the entities involved,” which itself was a violation of the Administrative Procedure Act (APA).

Missouri, Kansas and Idaho took the place of emergency physicians, was denied legal standing by the Supreme Court in June to block the FDA’s expansion of mifepristone, which made the abortion drug available through ten weeks of pregnancy, the mandatory reporting of eliminating non-fatal side effects, and allowing mail-order and retail pharmacy prescriptions without an in-person visit.

AGs Andrew Bailey, Kris Kobach and Raul Labrador, who originally intervened in the Alliance for Hippocratic Medicine’s failed challenge, told U.S. District Judge Matthew Kacsmaryk in a Sept. 30 joint status report with the defendants that they could take over the lawsuit.

“This amended complaint will confirm that the states are not challenging the original 2000 approval of mifepristone, but only the FDA’s actions from 2016 to 2023,” and update the facts supporting their legal status and “other aspects” of the complaint, they said.

The FDA is violating their state sovereignty by undermining their abortion regulations, including direct responsibility for “underage girls in the foster care system or other state facilities,” forcing them to spend taxpayer money to treat mifepristone complications, and their “actual or potential population’. by preventing births, the Oct. 11 amended complaint argues.

The Topeka Capital Journal reported that a successful challenge would require three in-person visits to obtain the drug, reverse its generic approval and prevent nurses and other providers from prescribing it and pharmacies from dispensing it. The AGs added a new claim that the expansion of mifepristone did not account for a “lack of adolescent research.”

The Biden administration’s HIPAA regulations changed the definitions of “person” to exclude people before birth, “reproductive health care” to apply “broadly” to the reproductive system, and “public health” to include and exclude the disclosure of personal health information (PHI). ) for examinations or procedures related to reproductive health care.

Dr.’s APA lawsuit Purl and its Fast Care Walk In Clinic claims the regulations exceed HHS’s statutory authority and are “arbitrary and capricious.”

It requires her to “demonstrably” violate Texas law by barring her from notifying authorities of a patient who has been coerced into an abortion and of “patients who have had abortions in other states,” as well as of minors with sexual communicable diseases or undergoing “gender transition” involving puberty blockers, cross-sex hormones and surgical changes.

Purl “regularly” encounters patients with reproductive system needs or medical histories, including abortion and gender reassignment, and state law requires her to report “suspected abuse or neglect of a child” as well as adults when they were children report.

The regulation attempts to have it both ways by expressly allowing disclosure “in defense of a claim or prosecution relating to ‘reproductive health care'” when a medical provider allegedly violates state laws on abortion or gender reassignment in children, the lawsuit says .

HIPAA not only has “nothing at all to do” with abortion or gender identity, but “treats medical information on these topics no differently than it treats other private information” and gives HHS “no authority to regulate in this manner,” according to the complaint.

The statute denies that it may be construed to invalidate or limit the authority, power, or procedures established under any law providing for reporting of disease or injury, child abuse, birth or death, public health surveillance, or investigation or public health intervention. .”

The ban on disclosure “without consent” cannot be “consistent with mandatory processes” such as subpoenas, Purl argues, and it does not give HHS the right to exclude “unborn children” from the definition of “person” or ‘strip states’. of their ‘authority over medical practice’ by redefining it from ‘public health’.

HHS gave the game away by admitting that the settlement was in response to the fact that the Supreme Court “allows states to significantly restrict access to abortion” and that it “may affect certain state interests in obtaining PHI to conduct potentially unlawful reproductive health care,” said Purl.

The regulation places the burden on covered entities to figure out whether they can disclose PHI, but as Severino has argued, the plain language can be difficult to interpret.

Purl and other providers must determine whether state officials and law enforcement agencies are seeking PHI “in connection with” broadly defined “reproductive health care” that is either lawful in “the state in which such health care is provided under the circumstances in which it is provided.” provided” or “protected, required, or authorized by federal law, including the Constitution of the United States.”

They must presume that the care provided by another person was lawful, “and thus not subject to investigation by a governmental authority,” unless they have “actual knowledge” that it was not, or the PHI requester has a “substantial factual basis’ shows that this was not the case. .

Because HHS argues Dobbs erroneously concluded that federal law, including the Emergency Medical Treatment and Active Labor Act – the subject of another legal challenge – requires providers to violate state law, and that “federal law creates a right for children of any age to undergo medical interventions” on gender transitions, it claims to override state laws, Purl said.

If she “guesses incorrectly about the validity of an attestation” after trying to understand the HHS position compared to SCOTUS “and where lower courts may disagree,” she faces “up to 10 years in prison and $250,000 in fines,” not to mention the FBI’s own estimated compliance costs of at least several hundred dollars per practice, according to the indictment.

Even if the “requesting official makes an attestation meeting the criteria of the 2024 rule,” she is still prohibited from “disclosing information for a number of other new reasons related to ‘reproductive health care.’ ”