Here’s what businesses need to know.
Until recently, the privacy rule under the Health Insurance Portability and Accountability Act, (“HIPAA”), was not the focus of political or legal controversy. However, in June 2025, a federal judge in Texas vacated most of a privacy rule that would apply to reproduction.
Background: The 2024 Final Rule
The U.S. Department of Health and Human Services (“HHS”) issued the HIPAA Privacy Rule to Support Reproductive Health Care Privacy (“Final Rule”) in April 2024, modifying portions of the 1996 HIPAA Privacy Rule. Building on President Biden’s Executive Order 14076, HHS issued the Final Rule in response to the U.S. Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. In Dobbs, the Court held that there was no right to abortion under the U.S. Constitution, but that the right should be determined by state law. The preamble to the Final Rule states that it was promulgated in an effort to protect related information and to strengthen patient-provider confidentiality.
The Final Rule prohibits covered entities, such as health care providers and business associates, from using or disclosing protected health information tied to “reproductive healthcare,” including abortion, contraception, and fertility treatments. Also encompassed by the Final Rule is PHI included in appointment logs, laboratory results, and provider communications.
Significant provisions of the Final Rule include the following:
- Prohibitions relating to certain uses and disclosures of reproductive health information across state lines.
- Requirements for new attestations before releasing PHI related to reproductive care.
- Mandates for updating Notices of Privacy Practices.
Covered entities were required to comply with the Final Rule by December 23, 2024.
Final Rule is vacated
A coalition of states and provider groups opposed the Final Rule in the lawsuit Purl v. United States Department of Health and Human Services.
The plaintiffs alleged that the Final Rule violated the Administrative Procedure Act because it was arbitrary and capricious and not authorized by statute; that Congress, not the HHS, should address issues of “vast political and economic significance,” especially when the issues cross state lines; and that the Final Rule violates principles of federalism.
In his June 2025 decision vacating most of the Final Rule, Judge Matthew Kacsmaryk (a Trump appointee) held that under President Biden, the HHS used the Final Rule as a means to advance a reproductive rights policy without clear authorization from Congress. Judge Kacsmaryk also found that the Final Rule violated the APA because it was procedurally deficient and not adequately justified by the HHS.
Finally, Judge Kacsmaryk agreed with the Plaintiffs that, under the Major Questions Doctrine, Congress should be responsible for regulating reproductive PHI, not federal agencies.
The surviving provisions of the Final Rule are unrelated to reproductive health. They include updates to Notices of Privacy Practices regarding substance use disorder records.
Practical implications for covered entities and business associates
On September 10, 2025, the U.S. Court of Appeals for the Fifth Circuit dismissed the appeal of Purl. The HHS has indicated that it continues to review the ruling and implications for its HIPAA rulemaking, and it appears likely that the HHS will issue updated guidance.
Entities should review current policies and procedures, training programs, and Business Associate Agreements and Notices of Privacy Practices, to ensure compliance with current law.
It is also essential for entities to remain alert to subsequent legal developments and to comply with applicable state privacy laws (for example, in California and Washington).
The Constangy Cyber Team assists businesses of all sizes and industries with compliance needs. If you would like additional information, please contact us at cyber@constangy.com.
Senior CounselAnna draws on a diverse background in government service and private practice. She has counseled organizations across a range of industries—including financial, healthcare, nonprofit, and technology organizations—on ...
The Constangy Cyber Advisor posts regular updates on legislative developments, data privacy, and information security trends. Our blog posts are informed through the Constangy Cyber Team's experience managing thousands of data breaches, providing robust compliance advisory services, and consultation on complex data privacy and security litigation.
