Since the Supreme Court's ruling in Dobbs v. Jackson Women's Health Organization (2022), there has been a heightened focus on protecting reproductive privacy and patient-doctor privilege. In response, the Department of Health and Human Services (HHS) issued new HIPAA regulations to strengthen protections for reproductive health information.

The final rules, published in July 2024, prohibit covered entities (providers, health plans, clearinghouses, and their business associates) from using or disclosing protected health information for the following purposes related to reproductive health care:

• Conducting investigations or imposing liability: "To conduct a criminal, civil, or administrative investigation into or impose criminal, civil, or administrative liability on any person for the mere act of seeking, obtaining, providing, or facilitating reproductive health care, where such health care is lawful under the circumstances in which it is provided."  
• Identifying individuals: "The identification of any person for the purpose of conducting such an investigation or imposing such liability."

Key Implications

• Cross-state privacy: Individuals seeking reproductive care in states with limited or no restrictions can maintain privacy in their home state.
• Provider obligations/Health Plans: Covered entities must complete training on the new regulations, update their Notices of Privacy Practice, and attest to compliance when responding to disclosure requests.
• Texas lawsuit: The State of Texas has challenged HHS's authority, arguing that the HIPAA statute preserves state investigative authority. The case is pending in the U.S. District Court for the Northern District of Texas where Texas is seeking injunctive release.

While HIPAA doesn't mandate providing specific services, it ensures that patient privacy is protected for all lawful reproductive health care services.

As the new HIPAA requirements approach their effective date on December 23, 2024, the outcome of the Texas lawsuit will significantly impact the scope of reproductive health protections. The ongoing uncertainty highlights the complex legal landscape surrounding reproductive rights.