In summary
In a legal battle between Trump and California over transgender and abortion care, will businesses be caught in a fight between hostile Justice Departments?
The latest clash between California and President Donald Trump over abortion and gender-affirming care could soon leave doctors caught between state and federal law.
Under a bill that may soon pass the Legislature, California medical providers and affiliated businesses could face hefty state fines if they comply with a federal subpoena seeking abortion, gender-affirming or reproductive care information without first notifying the California attorney general, patients and providers.
But delaying responding to the feds could put them at risk of violating federal law, and independent constitutional scholars say the pending law might not survive a legal challenge.
The bill is in response to efforts the Trump administration and conservative states have undertaken to block or criminalize abortion services and care for transgender people.
Under Assembly Bill 1930, any medical provider or business served with any civil, criminal or regulatory inquiry, investigation, subpoena or summons seeking “legally protected health care activity” “shall not comply” unless the provider notifies the state attorney general as well as others involved in the care.
The measure’s author, Assemblymember Rick Chavez Zbur of Los Angeles, said the impetus for the bill, in part, was a federal subpoena from the Trump administration to Children’s Hospital Los Angeles seeking medical records for youth transgender patients.
“No one should have to fear that seeking lawful medical care in the state of California could put their privacy and their safety at risk,” he told the Assembly Judiciary Committee at a hearing last week.
Lawmakers spent just 17 minutes discussing AB 1930 at its first legislative hearing last week, despite the legal complexities and consequences for California’s patients, doctors, hospitals, insurers, tech companies and others. It passed on a party-line vote, according to the CalMatters Digital Democracy database. It now moves to the Assembly Public Safety Committee where it’s scheduled to be discussed on Tuesday
The Los Angeles hospital was one of 20 medical providers that offered gender-affirming care for minors that received federal subpoenas seeking patients’ medical records. At the time, the U.S. Justice Department said the subpoenas were part of an investigation into “health care fraud” and “false statements.” Some of the families sued to fight the subpoenas. In January, the feds backed off and didn’t receive the records.
Rady Children’s Hospital, which operates facilities in San Diego, Orange and Imperial counties, told CalMatters earlier this year that the U.S. Health and Human Services inspector general was investigating the hospital. The investigation preceded Rady’s decision to halt most gender-affirming services for minors, a decision that is now tied up in multiple court cases.
The measure says that in order for a business or provider to release records, the entity making the legal demand must include an affidavit declaring that the investigation is not related to punishing providers for performing abortions, transgender care or other services protected under California law or that the investigation involves a possible California crime or is an inquiry into “professional discipline.”
The recipient would be required to inform the attorney general’s office within seven days of receiving the legal demand. The attorney general would have an additional 30 days to review the matter before the recipient could comply with the order.
The measure, which is co-sponsored by Attorney General Rob Bonta, would also mandate that the provider notify patients and providers whose records are being sought. Those who break the rules would face civil penalties of up to $15,000 per violation.
Democrats move to protect abortion
California lawmakers have, in recent years, enacted more than a dozen laws designed to shield medical professionals from conservative states and the federal government on abortion and transgender health care.
Democrats passed the laws after the U.S. Supreme Court overturned Roe v. Wade and other states began banning or criminalizing abortion. Thirteen states ban abortion and some, most notably Texas, penalize anyone who helps another person get an abortion.
Legislative efforts to protect clinicians and patient medical records have expanded as the Trump administration has increasingly politicized other services like gender-affirming care for minors.
Learn more about legislators mentioned in this story.
California laws prohibit state law enforcement from extraditing medical professionals who may have violated another state’s laws on abortion or gender-affirming care. They also prohibit medical facilities from sharing patient information about those services with out-of-state law enforcement.
LGBTQ+ civil rights group Equality California is the latest bill’s other co-sponsor. Zbur was its executive director before being elected to the Legislature.
Equality California’s legislative director, Craig Pulsipher, told the Judiciary Committee the measure builds “on California’s existing protections to ensure that patients can access health care without fear that their personal information will be weaponized against them.”
Various groups that oppose gender-affirming care are against the measure, as is the California Chamber of Commerce.
In a letter to lawmakers, representatives for the state’s influential business lobby said CalChamber’s members appreciate lawmakers wanting to “help defend businesses facing subpoenas,” and they don’t oppose the bill out of “support for misuse of subpoena powers.”
“However, we are concerned that AB 1930 will compel businesses to violate federal law in order to comply with state law,” they wrote.
Layla Jane, a “detransitioner” who sued her health care provider over the gender-reassignment surgery she received as a teen, said the bill would protect doctors from investigations into negligent care and make it harder for patients like her to subpoena for medical records.
“This bill shields providers so they can keep chopping up bodies,” she told the committee. “It wraps the doctors, the clinics, the gender industry in a legal blanket and says, ‘You are protected from accountability no matter who you harmed.’ There is no blanket for me.”
Would the bill survive a legal challenge?
Bill Essayli, a former Republican state lawmaker who oversees the U.S. Attorney’s Office in Los Angeles, said in a statement that Zbur’s measure would be unconstitutional.
“Any effort by California to restrict the federal government’s lawful use of, or compliance with, subpoenas is unlawful and unenforceable under the Supremacy Clause,” Essayli said.
Three independent constitutional scholars who CalMatters asked to review the bill suggested Essayli may have a point.
Under that provision of the U.S. Constitution, states cannot pass laws that run counter to the federal government’s legal authority.
“If there’s a conflict between federal law on the one hand, and state or local (law) on the other, federal law wins out,” said Erwin Chemerinsky, the dean of UC Berkeley School of Law.
Chemerinsky and the other scholars said the measure is unlikely to run into the same legal problems that caused a federal judge to block California’s attempt to ban federal agents from wearing masks. The judge in the mask case ruled that the state had discriminated against the federal government since it exempted state police from the ban.
This proposed measure doesn’t single out the federal government; the bill applies to any entity issuing subpoenas.
Still, the scholars said forcing private health care providers and businesses not to respond to a subpoena on a federal deadline could be legally problematic.
“It looks like the federal government could say you’re impeding their law enforcement,” said Leslie Gielow Jacobs, a law professor at University of the Pacific McGeorge School of Law.
“Is this impeding federal … objectives?” said Vikram David Amar, a law professor at the UC Davis School of Law. “If so, it would be invalid under Supremacy.”
The California Attorney General’s Office responded to an interview request for Bonta with an unsigned written statement.
“Bills aren’t final when they’re introduced and can change throughout the legislative process,” it read. “Our office will continue to have conversations with stakeholders regarding AB 1930 and will address concerns as appropriate and needed.”
Source link