Feds Endanger Women, Children By Trampling State Abortion Laws, ‘Gender-Affirming’ Care: Lawsuits

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

HHS’s new regulation under the Health Insurance Portability and Accountability Act contradicts the statute’s own recognition of “government authority to investigate and require disclosures about abuse” by criminalizing HIPAA-covered entities to share 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 regulation to the states, their attorneys at the Alliance Defending Freedom said.

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

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

Severino went so far as to compare HHS to southern states that vowed to ignore the Supreme Court’s desegregation ruling. Brown v. Board of Education. he said Just the news at the time the proposal’s “absolutely impenetrable” language appeared “to confuse and misdirect” covered entities, itself a violation of the Administrative Procedure Act (APA).

Missouri, Kansas and Idaho took over from emergency physicians, who were denied standing by the Supreme Court in June, to block the FDA’s expansion of mifepristone that made the abortion drug available for 10 weeks of pregnancy, eliminated mandatory reporting of non-fatal adverse events and allowed mail and retail pharmacy prescriptions without an in-person visit.

CEOs 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 filing with the defendants who could assume the claim.

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

The FDA infringes on its state sovereignty by undermining its abortion regulations, including direct responsibility for “minor girls in the foster care system or other state facilities,” forcing them to spend taxpayer dollars to treat complications of mifepristone and reduce its “actual or potential population.” by preventing births, argues the October 11 amended complaint.

The Topeka Capital-Daily reported that a successful challenge would require three in-person visits to obtain the drug, reverse its generic approval and prevent nurse practitioners and other providers from prescribing it and pharmacies from dispensing it. The AGs added a new claim, that the expansion of mifepristone did not take into account the “lack of studies on adolescents”.

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

The demand of the APA of Dra. Purl and his Fast Care Walk In Clinic allege that the regulation exceeds HHS’s legal authority and is “arbitrary and capricious.”

“Possibly” requires her to violate Texas law barring her from notifying authorities of a patient forced to have an abortion and “patients who have received abortions in other states,” as well as minors with sexually transmitted diseases or who are undergoing a ” “gender transition” involving puberty blockers, cross-sex hormones and surgical alterations.

Purl “regularly encounters” patients with reproductive system needs or medical histories, including abortion and gender transitions, and is required by state law to report both “suspected child abuse or neglect” as adults when they were children.

The regulation tries to have it both ways by expressly allowing disclosure “to defend against a claim or prosecution involving “reproductive health care”” when a medical provider allegedly violates state abortion or child gender transition laws , the lawsuit says.

Not only does HIPAA “have nothing to do” with abortion or gender identity, it “treats medical information about these topics no differently than other private information” and gives HHS “no authority to regulate in this way,” the lawsuit says.

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

Its ban on “unauthorized” disclosure cannot “sweep pursuant to (a) mandatory process,” such as subpoenas, Purl argues, and does not authorize HHS to exclude “unborn children” from the definition of “person” or band states. of their “authority over medical practice” by redefining them as “public health”.

HHS gave the game away by admitting that the regulation was a response to the Supreme Court’s ruling that it “allows states to significantly restrict access to abortion” and “may affect certain state interests in obtaining PHI to research care for potentially illegal reproductive health,” Purl said.

The regulation puts the burden on covered entities to figure out whether they are allowed to 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 are seeking PHI “in connection with” broadly defined “reproductive health care” that is legal in “the state in which such health care is provided in the circumstances in which it is done”. provided” or “protected, required, or authorized by federal law, including the United States Constitution.”

They must presume that the care provided by another person was lawful, “and therefore not subject to investigation by a government agency,” unless they have “actual knowledge” that it was not or the applicant for PHI demonstrate a “substantial factual basis” that it was not. .

Because HHS argues Dobbs wrongly decided, that federal laws, including the Emergency Medical Treatment and Active Work Act, the subject of another legal challenge, require providers to violate state law and “federal law creates children’s right to any age to receive medical interventions” by gender. transitions, seeks to override state laws, Purl said.

If he “guess wrong about the validity of a certification” after trying to make sense of HHS’s positions compared to SCOTUS “and where lower courts may disagree with each other,” he faces “up to 10 years in prison and $250,000 in fines.” Not to mention the feds’ own estimated compliance costs of at least several hundred dollars per practice, according to the lawsuit.

Even if the “requesting official provides a certificate that meets the criteria of the 2024 Rule,” he is still prohibited from “disclosing information for other new reasons related to “reproductive health care.”