Federal Government Endangers Women, Children by Trampling State Laws on Abortion and ‘Gender-Affirming’ Care: Lawsuits

As Republican attorneys general bite the apple a second time in a lawsuit against the Food and Drug Administration’s relaxed rules over the abortion drug mifepristone, a Texas family doctor is suing the Department of Health and Human Services – before the same judge – for another alleged distortion of the law to favor both abortion and so-called gender-affirming care.

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

This is a direct attack on the Supreme Court Dobbs decision returning abortion regulation to the states, her attorneys at the Alliance Defending Freedom said.

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

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

Severino went so far as to compare HHS to southern states by promising to ignore the Supreme Court’s decision on desegregation. Brown v. School Board. He said Just the news at the time, the proposal’s “absolutely inscrutable” language appeared “deliberately intended to confuse and distract” from covered entities, which itself constitutes a violation of the Administrative Procedure Act (APA).

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

Attorneys General Andrew Bailey, Kris Kobach and Raul Labrador, who originally intervened in the Hippocratic Medicine Alliance’s failed challenge, told U.S. District Judge Matthew Kacsmaryk in a joint filing on 30 September with the defendants that they could resume the trial.

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

The FDA is undermining its state’s sovereignty by undermining its abortion regulations, including direct responsibility for “minor girls placed in the foster care system or other state facilities,” forcing them to spending taxpayer money treating mifepristone-related complications and reducing their “actual or potential population.” by preventing births, states the amended complaint of October 11.

THE Topeka Capital-Journal reported that a successful challenge would require three in-person visits to obtain the drug, rescind its generic approval and prevent nurse practitioners and other providers from prescribing it and pharmacies from dispensing it. The AG added a new assertion 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 prenatal humans, “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 APA lawsuit filed by Dr. Purl and his Fast Care Walk In Clinic alleges that the regulations exceed HHS statutory authority and are “arbitrary and capricious.”

It “arguably” requires her to violate Texas law by preventing her from notifying authorities about a patient forced into an abortion and “patients who have had abortions in other states,” as well as minors with medical conditions. sexually transmitted or undergoing a “gender transition” involving puberty blockers, cross-sex hormones and surgical modifications.

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

The settlement attempts to have it both ways by expressly allowing disclosure “to defend against a claim or suit involving ‘reproductive health care'” when a medical provider allegedly violated state abortion laws or gender transitions in children, the lawsuit says.

Not only does HIPAA “have nothing to do” with abortion or gender identity, it “does not treat medical information on these topics any differently than other private information” and gives HHS “no authority to regulate in this manner,” the suit states.

The law rejects that it may be “construed to invalidate or limit the authority, power or procedures established under any law providing for the reporting of illness or injury, abuse, birth or death of children, public health surveillance or public health investigations or interventions. “.

Its ban on “without authorization” disclosure cannot “comply with (a) mandatory process” such as subpoenas, Purl asserts, and it does not authorize HHS to exclude “unborn children” from the definition of “person” or to strip the States. of their “authority over medical practice” by redefining them outside of “public health”.

HHS betrayed the game by admitting that the regulation was a response to the Supreme Court “allowing states to significantly restrict access to abortion” and that it “may affect the interests of some states in obtaining access to abortion.” “a PHI to investigate potentially illegal reproductive health care,” Purl said.

The regulation places the burden on covered entities to determine whether they are permitted to disclose personal health information, but as Severino argued, the plain language can be difficult to interpret.

Purl and other providers must determine whether state officials and law enforcement seek private health care “in connection” with broadly defined “reproductive health care” that is either legal in “the ‘state in which such health care is provided in the circumstances under which it is 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 therefore not subject to investigation by a government agency”, unless they have “actual knowledge” that it was not. was not the case or that the PHI requester demonstrates a “substantial factual basis” that it was not the case. .

Because HHS supports Dobbs was wrongly ruled that federal laws, including the Emergency Medical Treatment and Active Labor Act — which are the subject of another legal challenge — require providers to violate state law , and that “federal law creates the right for children of any age to receive medical interventions” for their gender. transitions, it claims to override state laws, Purl said.

If she “mistakes the validity of a certification” after trying to make sense of HHS’s positions in relation to SCOTUS “and when lower courts may disagree with each other,” she risks “up to to 10 years in prison and a $250,000 fine.” not to mention the federal government’s estimated compliance costs, which amount to at least several hundred dollars per practice, according to the suit.

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