One thing I’ve been wondering about is how this law interacts with HIPAA protections. I mentioned this in another thread, but it was off-topic, so I thought I’d bring the question over here.
In the oft-quoted scenario of the Uber driver being sued by, say, the ex-husband for transporting a woman for an illegal (post-six week) abortion, how does anyone find out if the woman had an abortion and not just a pap smear?
The HIPAA protections are the woman’s. By Federal law, the clinic cannot release that information to a third party without that woman’s written permission. If she denies that permission, what happens?
Max_S in the other thread mentioned that HIPAA has to give way to a court order, and that certainly makes sense, but again, the woman is not party to this civil action; I can certainly envision a judge denying access to the medical records on those grounds.
Does the Texas law contain some provision to override the HIPAA protections? Can a state judge order the release of records protected by Federal law?
I am not a lawyer, so I’m not sure where this goes. It just seems to me that, if the ex-husband’s lawyer shows up at the door with a HIPAA release form, the woman would be well within her rights to tell the guy to pound sand.
That still requires the court to drag the defendants into the discovery process, costing them time and money.
I’m pretty sure that’s the goal here- make it so onerous to just be accused of having abetted an abortion, that nobody will want to be within miles of one.
Seems to me the right approach would be to figure out how to start accusing the GOP politicians and their families of this sort of thing. Even if there’s no proof, they still have to go through all the gyrations to prove they DIDN’T abet an abortion, and have the court subpoena their medical records, and so on.
Typically you would allege that you say Uber driver Smith drop Ms. X off at a local clinic known publicly to provide abortion services. You allege that as ex-husband, she confided in your mother that she had missed her cycle last month and was worried about pregnancy and was unsure about what to do. Upon recollection, she had never used that clinic before. You sue.
The clinic files an answer denying the allegation.
You subpoena the medical records and take a deposition of the doctor, the woman, her mother, and the Uber driver. (If you win, the doctor is paying for all of these depositions). If they balk at revealing health information you (and this is typical) get what’s called a “protective order” from the judge where the PHI cannot be released by the attorneys to any outside party and is only for the purposes of litigation.
As shitty as this is in this context, it is used in every other civil context. If you sue someone, you can open up their life and all embarrassments.
I 100% believe you that this is how it works but how is your private medical history still private when a judge demands it be released for litigation?
So what if the attorneys cannot release the information to anyone else? It is now part of a trial and public record. And, even if they somehow seal that up the result of the case can reveal private health information (if Uber loses because they transported a person for an abortion we now know what she was there for).
So, want to get someone’s protected medical records? Just sue them.
Yeah, AIUI the whole point of this law is that it’s illegal to get an abortion after six weeks’ gestation in Texas, so it’s aiding or abetting a post-six-weeks abortion in Texas that you can sue someone for.
It’s not illegal for Texans to go do something in another state that’s legal in that state, even if it couldn’t be done legally in Texas.
This is jut MHO; I don’t plan to debate: If Texas outlaws abortion, which they all but did, then the State of Texas should be liable for child support, health care, education, and other expenses involved with raising a child, until the child is eighteen. The money would come from a slight tax increase, which the voters of Texas implicitly agreed to when they elected to make births mandatory.
I’ll just say I expect their response would be a woman getting pregnant is her own fault and not the state’s problem. If she got raped she probably dressed sexy or something so had it coming (in their view…NOT mine to be clear).
Texas does have a Safe Haven (or “Baby Moses”) law, authorizing parents to abandon a child 60 days old or younger at any hospital, fire station or EMS station in Texas, abdicating parental responsibilities and secured from prosecution for abandonment and neglect.
Depending on how the Safe Haven babies are cared for and how many more of them will be born as a result of these abortion restrictions, I guess this could work out in practical terms to the State of Texas becoming liable for the care and support of unwanted babies.
Adoption agencies aren’t open 24 hours, for one thing.
Seriously, a lot of newborns have ended up in dumpsters and so forth because their parents were unwilling or unable to care for them or prepare for their birth at all. Arranging adoptions via agencies requires time, flexibility, knowledge and short-term resources that a lot of mothers of unwanted babies just don’t have. Dropping a baby off at the nearest hospital or firehouse is a lot easier.
You can ask to have your name redacted from public records of the case because you are a non-party and have privacy rights, and unless there is a good reason not to I believe the judge is obliged to grant your request.
If you’re wondering how practical that is, remember that minors usually have their names redacted and that the Roe in Roe v Wade was not actually named Jane Roe.
You never can. Despite medical privacy laws, you cannot stop a third party from disclosing embarrassing information. If I got drunk last night, passed out and hit my head on the front stoop and had to go to the hospital, you can’t peruse the hospital records nor can the doctor tell you what happened, but if my wife tells you, there is no law against that.
This is NOT about targeting abortion providers/medical people/clinics (well, OK somewhat), it’s about targeting anyone who would help a woman obtain an abortion in any way. So yes, the Uber drive taking a woman to an airport, or the bus driver for the Greyhound she takes to Wichita, Kansas, or anyone else who aids her in any way who does the “aiding and abetting” while in the borders of Texas.
That’s expecting rational reasoning and consistency from the politicians in Texas. Which, based on past history, you shouldn’t.
Based on what little I know of the Safe Haven babies in my state (Indiana) the child services agency tries to get them adopted ASAP, or at least into foster care. If they’re adopted they are no longer the state’s problem.
Some communities still do terrible things to unwed mothers.
There are women who, for whatever reason, not only do not want the child but do not want the possibility of a future grown person knocking on their door and saying “hi, mom!”.
There are still communities where an inter-racial baby is… let’s just say “not welcome”.
From what little I know of how the system has worked in Indiana, there is not a disproportionate amount of kids born with defects or other such problems being left under the Safe Haven laws.
I am not at all sure of the thinking (or lack of it) and emotions involved in such a decision, but women do abandon babies. Setting up the “baby bins” was controversial, but I’d rather the babies be left in such places where they will be rapidly found (ours have alarms that notify people they’ve been used) rather than in, say, garbage bins or cardboard boxes or whatever.
Sec. 171.208. CIVIL LIABILITY FOR VIOLATION OR AIDING OR
ABETTING VIOLATION. (a) Any person, other than an officer or
employee of a state or local governmental entity in this state, may
bring a civil action against any person who:
(1) performs or induces an abortion in violation of
this subchapter;
(2) knowingly engages in conduct that aids or abets
the performance or inducement of an abortion, including paying for
or reimbursing the costs of an abortion through insurance or
otherwise, if the abortion is performed or induced in violation of
this subchapter, regardless of whether the person knew or should
have known that the abortion would be performed or induced in
violation of this subchapter; or
(3) intends to engage in the conduct described by
Subdivision (1) or (2).
An abortion performed in Kansas or any other state is not an abortion “performed or induced in violation of this subchapter” because the subchapter mentions TX licensed physicians performing post 6 week abortions.