New Administration Outlook: Trump Orders and the Impact on Reproductive Healthcare
On January 24, 2025, President Trump issued an Executive Order, titled "Enforcing the Hyde Amendment," revoking President Biden's two Executive Orders 14076 (July 8, 2022) and 14079 (August 3, 2022) that federally protected access to reproductive healthcare services. President Trump's Executive Order will leave that subject to the states and will impact how patients, particularly those in states with restrictive abortion laws, access reproductive healthcare services.
Background on Biden Orders
President Biden's Executive Order 14076, titled "Protecting Access to Reproductive Health Care Services," was issued in response to the Supreme Court's decision to overturn Roe v. Wade. Among other things, the order directed the Department of Health and Human Services to: (1) expand access to contraceptives, (2) identify steps to ensure that all patients—including pregnant women and those experiencing pregnancy loss, such as miscarriages and ectopic pregnancies—receive the full protections for emergency medical care afforded under the law, including by considering updates to current guidance on obligations specific to emergency conditions and stabilizing care under EMTALA, and (3) consider actions including providing guidance under HIPAA and any other statutes as appropriate to strengthen the protection of sensitive information related to reproductive healthcare services and bolster patient-provider confidentiality.
President Biden's Executive Order 14079, titled "Securing Access to Reproductive and Other Healthcare Services," directed federal agencies to take steps to safeguard access to reproductive healthcare services, including abortion, contraception, and family planning. It emphasized the need to protect patient privacy and sensitive health information, support healthcare providers, and ensure that individuals can access accurate information about their reproductive rights. The order also called for efforts to address barriers to healthcare access, particularly for marginalized and underserved communities, and to promote public awareness of reproductive healthcare services and rights.
Trump's New Order and Privacy Implications
President Trump's new executive order signals that the federal government will not actively protect access to reproductive healthcare services, leaving more of the responsibility to individual states. The protections for interstate travel and the safeguards for patients' privacy and data will likely also weaken, making it harder for individuals to access reproductive healthcare across state lines, especially when traveling from states that have restricted abortion access. Healthcare providers might also face more uncertainty and legal risk in states with restrictive abortion laws (or in border states).
As to the privacy of reproductive healthcare information, as of December 23, 2024, HIPAA covered entities and business associates are required to comply with HHS's recent amendments to the HIPAA Privacy Rule that safeguard the privacy of information about lawful reproductive healthcare. The amendments prohibit uses and disclosures of any protected healthcare information for purposes of investigating or imposing liability on someone for seeking, obtaining, facilitating, or providing lawful reproductive healthcare, and also require attestations for certain requests for protected health information to confirm that the requestor is not seeking the information for such a prohibited purpose.
Takeaways and Next Steps
The future of these amendments, however, remains uncertain. The HHS Office for Civil Rights may quietly choose to not enforce the amendments to the Privacy Rule, may publicly post a notice of enforcement discretion indicating that they will not enforce the amended rule, and/or may begin the process of notice-and-comment rulemaking to formally revoke the Privacy Rule amendments. Additionally, a number of state attorneys general have challenged the amendments in court. The new administration is unlikely to defend the amendments, potentially leading to courts declaring the amendments unlawful.
On a related front, DOJ dropped a criminal HIPAA prosecution against a Texas physician over allegations that he disclosed patient information to the press to publicize a children hospital's gender-affirming care services. A U.S. attorney under the Biden Administration initiated the HIPAA criminal prosecution, but DOJ dismissed the case shortly after the U.S. Attorney's resignation.
President Trump's executive order revoking two of President Biden's executive orders that directed federal agencies to ensure access to reproductive healthcare services will undoubtedly place more responsibility on individual states to ensure access. Furthermore, the anticipated reluctance of the new administration to support recent amendments to the HIPAA Privacy Rule could deter healthcare providers in states adjacent to those with restrictive abortion laws. These providers, who might otherwise offer abortion services to residents from restrictive states, may refrain due to concerns about potential criminal or other sanctions.