Calls grew on Sunday for Lizelle Herrera, a Texas woman charged with murder for self-induced abortion, to file a lawsuit after her personal medical information was released.
Authorities arrested the 26-year-old after she allegedly “intentionally and knowingly” induced the abortion, sparking an international backlash against tough new Texas abortion restrictions. In September, the state government passed Senate Bill 8, banning all abortions after six weeks of pregnancy, when many women don’t even know they are pregnant.
Herrera was arrested after suffering a miscarriage and leaked information to hospital staff, who later reported her to police, leading leading critics of Texas abortion policy to claim that the arrest stemmed from a HIPAA violation.
HIPAA, or Health Insurance Portability and Accountability Act, is the law intended to prevent healthcare professionals from revealing patients’ personal information.
“Officers who violated his civil rights must also be brought to justice,” tweeted Leah Torres, an obstetrician-gynecologist in Alabama.
Attorney and legal expert Tristan Snell wrote, “Of course, Lizelle Herrera should consider suing the bejesus against: – the hospital and its staff, for HIPAA violations and possibly malicious prosecution – the sheriff’s office and its staff, for false imprisonment and 42 USC 1983 federal civil rights claims.”
Others, however, pointed out that the matter could be legally complicated. Texas has some of the strictest anti-abortion laws in the United States, prohibiting most abortions, and HIPAA provides some exceptions for reporting to law enforcement.
One of those exceptions includes “when a covered entity believes the protected health information is evidence of a crime that occurred on its premises,” according to the Department of Health and Human Services (HHS). .
HIPAA also doesn’t have a private cause of action, but there are other legal options, including lawsuits for negligence or breach of contract. HIPAA complaints can also be filed with HHS.
It remains unclear in Herrera’s case what information was leaked, why it was leaked, and whether it constitutes an exception.
On Sunday, Starr County District Attorney Gocha Allen Ramirez said he would drop charges against Herrera, noting that she “cannot and should not be prosecuted for the allegations against her.” He hoped, he added, that “it would be clarified that Ms. Herrera did not commit a criminal act under the laws of the State of Texas.”
The incident drew more attention to Texas abortion laws, which are considered among the most restrictive in the United States.
National Advocates for Pregnant Women, a nonprofit, said the incident showed the “true intent” of lawmakers who passed the state’s tough legislation, and more cases could follow.
“It’s a tragedy, and it’s just the tip of the iceberg,” the band said. “No case in Texas has ever authorized the use of the state’s murder law to fight abortion or pregnancy loss. It’s unconstitutional.”