Emergency Abortion Care, Privacy Rule Face Shift After Trump Win

Federal guidance on emergency abortion care and expanded privacy protections are under threat of being withdrawn as policy analysts expect a second Trump administration to leave the issue of abortion regulation to the states.

President-elect Donald Trump, who has repeatedly credited himself for the US Supreme Court’s 2022 decision overturning the constitutional right to abortion, is expected to direct the US Justice Department to withdraw its support of major abortion policies that have been a focus of President Joe Biden’s administration in the aftermath of the Dobbs v. Jackson Women’s Health Organization ruling.

These policies include the US Department of Health and Human Services’ view that state abortion bans conflict with requirements under the Emergency Medical Treatment and Labor Act, as well as a rule finalized earlier this year strengthening Health Insurance Portability and Accountability Act (HIPAA) protections for abortion care and blocking health-care providers from giving law enforcement patient information on legally obtained reproductive services.

Weakened federal abortion protections would leave the future of abortion care uncertain, as a patchwork of state reproductive health laws have exacerbated geographic disparities in abortion access across the country.

Trump’s defense of states’ rights means that federal regulation “is not meant to touch a state’s ability to enforce their own laws in the state,” said Kaye Pestaina, a vice president at KFF and director of the organization’s Program on Patient and Consumer Protections.

Emergency Care

Shortly after the Dobbs decision, the Biden administration issued guidance stating that all Medicare-participating hospitals are required under EMTALA to provide abortions as emergency medical treatment.

The Supreme Court in June upheld a pause on Idaho’s abortion ban as the Biden administration’s challenge to the state’s law over its alleged conflict with EMTALA continues at the US Court of Appeals for the Ninth Circuit.

But a second Trump administration “could direct the Department of Justice to stop that prosecution,” Alison Tanner, senior litigation counsel for reproductive rights and health at the National Women’s Law Center, said in an interview.

Tanner said this would also be the case for ongoing litigation with the state of Texas, where abortion is completely banned with limited exceptions. The Supreme Court last month let stand an appeals court decision saying Texas wasn’t bound by the HHS guidance on emergency abortion care.

John Bursch, senior counsel at the Christian legal firm Alliance Defending Freedom and one of the attorneys representing Idaho and Texas in the EMTALA cases, signaled he would support the incoming administration’s withdrawal from these cases.

“The federal government should always hold its agencies accountable and ensure they prioritize the health of women, not the abortion industry,” Bursch said in an email.

Conservatives are also pushing for the Trump administration to explicitly rescind the EMTALA guidance.

Roger Severino, who led the HHS Office for Civil Rights during the first Trump administration, wrote in his HHS chapter of the Heritage Foundation’s Project 2025 presidential transition plan that the next administration should “reverse distorted pro-abortion ‘interpretations’ added” to EMTALA.

The HHS should “rescind the guidance and end CMS and state agency investigations into cases of alleged refusals to perform abortions,” and the “DOJ should agree to eliminate existing injunctions against pro-life states,” Severino wrote.

Privacy Protections

The Biden administration’s expanded HIPAA regulations for abortion care also stand likely to be rolled back, thereby removing federal protections for patients who have increasingly traveled across state lines for abortion care since the Dobbs decision.

A total of 13 states currently ban abortion with limited exceptions, leaving care beyond six weeks of pregnancy largely unavailable in the Southeast and other pockets of the country. Eight states have laws shielding abortion providers from investigations involving patients from other states—California, Colorado, Maine, Massachusetts, New York, Rhode Island, Vermont, and Washington.

The abortion privacy rule, which the HHS finalized in April, aims to protect a patient living in a restrictive state who travels to another state for abortion services by clarifying that medical providers don’t need to provide patients’ records to law enforcement for investigative purposes.

The Trump administration could “begin the process of rolling back the rule,” and “also not defend the rule where it’s challenged in court,” said Wendy Parmet, faculty director at Northeastern University’s Center for Health Policy and Law.

But a court order could very well pause the rule’s enforcement before Trump moves back into the White House.

ADF last month filed a lawsuit on behalf of a Texas physician challenging the privacy rule, which the legal firm argues would illegally restrict “doctors’ ability to report abuse and states’ ability to protect children from abortion and gender transition drugs and surgeries.” The complaint asks the US District Court for the Northern District of Texas to issue a preliminary injunction before the rule’s compliance date of Dec. 23.

Severino’s Project 2025 chapter also calls on the next administration to remove its HIPAA abortion protections, calling them “unnecessary” and contributing to “ideologically motivated fearmongering about abortion after Dobbs.”

While Trump has attempted to distance himself from Project 2025’s recommendations, Tanner said policy watchers shouldn’t be surprised if his administration “takes action to rescind the guidance that the Biden administration issued to help to mitigate the healthcare chaos that has unfolded since the Supreme Court overturned the federal constitutional right to abortion.”