TL/DR –
Attorney General Pam Bondi has issued subpoenas to medical providers who treat transgender youth in a bid to prevent them from offering expert care. There’s a big privacy gap in the Health Insurance Portability and Accountability Act (HIPAA) as it allows disclosures “required by law”, including those issued by Bondi. The article argues that the federal district courts should step in and shield private medical data, urging them to extend existing legal shields to include records of gender-affirming and transgender medical care as well as records of reproductive care more generally.
In Response to Unjust Subpoenas, Demand for Federal Intervention Increases
In the second Trump administration, Atty. Gen. Pam Bondi recently issued subpoenas targeting medical providers for transgender youth. While not aimed at starting prosecutions, the intent is clearly to intimidate these providers.
Government actions like this can succeed in hindering proper care, even if the threats prove legally baseless. It’s evident in the Trump administration’s unconstitutional attacks on law firms that have worked effectively.
However, federal district courts hold the power to safeguard patient-physician and attorney-client communications. During a period when reproductive care is in jeopardy, they could protect confidential medical data.
Many people assume doctor-patient discussions are private, which is partly true. HIPAA restricts distribution of medical information. However, HIPAA still allows legal disclosures, which could be a loophole for the recent subpoenas.
In earlier academic studies, we’ve called for closing this gap. Still, the real power lies with federal district courts to protect reproductive healthcare information.
We recommend federal courts extend current legal protections to encompass transgender and gender-affirming medical care records. These privileges not only prevent information from being used at trial but also shield against subpoenas.
Federal courts have the authority to create these privileges. Existing protections include not just attorney-client but also executive-branch communications. It’s time for doctor-patient communications in gender and reproductive medicine to receive similar protections.
If one of the subpoenaed physicians goes to court, federal courts could reasonably extend these protections. These courts have the responsibility to shape rules related to evidence. They don’t have to wait for the Supreme Court to act, as the Federal Rules of Evidence left privileges to common law development within district courts.
The case for recognizing privileges versus recent subpoenas is strong: The attorney general’s actions threaten physicians’ first amendment rights and federally protected care provisions. Subpoenas of this nature undermine the rule of law. Today, it’s transgender kids; tomorrow, it could be individuals seeking abortions or contraception. Our privacy deserves protection before such extremes are reached.
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