privilege

Information, in the second Trump administration, is a currency of power and fear. Last week, Atty. Gen. Pam Bondi announced sweeping subpoenas targeting physicians and medical providers who offer care for transgender youth. The aim is not to initiate prosecutions: Indeed, the legal theories upon which such prosecutions might rest are tenuous at best.

By filing these investigative demands, the government plainly hopes to chill medical providers from offering expert care. This strategy can work even if, at the end of the day, the government’s threats are hollow as a matter of law. The White House’s plainly unconstitutional attacks on law firms, for example, have substantially worked — even though the minority of firms to challenge the orders rapidly won relief.

Fortunately, the legal system is not powerless in the face of such overreaching: Federal district courts have the authority, and the obligation, to recognize that patient-physician dealings are akin to attorney-client and spousal discussions. Both of the latter benefit from judicially created privileges — or legal shields that individuals can invoke against the state’s probing. At a moment when not just gender medicine but also reproductive care more generally is in peril, federal courts can and should step in and shield intimately private medical data as well.

We suspect that many people believe that what they tell their doctors is already private. They’re right, but only sort of. There’s a federal law called HIPAA that limits what your doctor can do with the information. It says that your doctor can’t, for instance, sell your medical records to the newspaper. In 2024, the Department of Health and Human Services also issued a HIPAA “privacy rule” that heightened protections for reproductive healthcare information. (Last month, a federal district court in Texas declared the rule unconstitutional — so its future is uncertain.)

Even with the privacy rule, however, HIPAA hides a gaping hole: It allows disclosures “required by law.” And the law explicitly permits disclosures pursuant to subpoenas of all kinds — judicial, grand jury or administrative — including those issued by Bondi. So if the Justice Department subpoenas your intimate and sensitive healthcare information, HIPAA won’t stop that.

In previous academic work, we’ve urged Congress and state legislatures to fill this gap. Blue states have acted to curtail cooperation with other states — but there’s a limit to what states can do when the federal government demands information.

Yet there remains one entity that can, and should, act immediately to shield reproductive healthcare information: the same federal district courts that have been at the forefront of pushing back on the Trump administration’s many illegal and constitutional actions. We think federal courts should extend existing “privileges,” as evidentiary shields are called, to encompass both records of gender-affirming and transgender medical care, and also records of reproductive care more generally.

A privilege not only bars protected information from being admitted into evidence at trial, but also blocks subpoenas, warrants and other court orders.

Federal district courts have a general power to create privileges, and they often do so when people already have a reasonable expectation that their conversations will not be disclosed. Most people have heard of the attorney-client privilege, which means that you can confide in your lawyer without worrying that what you say will end up being used in court. But privileges can apply to all sorts of other information as well: what you tell your spouse, what you tell your spiritual advisor and even highway safety data that your state reports to the feds in exchange for funding. Existing court-created privileges protect not only attorney-client but also executive-branch communications.

Federal courts should recognize a privilege for doctor-patient communications in gender and reproductive medicine. They could do so if one of the physicians subpoenaed recently goes to court. The protection they seek is simply an extension of widely recognized legal principles and expectations of privacy. Federal courts already have recognized a privilege for patient communications with psychotherapists, and many state courts also offer privilege protections for broader doctor-patient communications.

Importantly, it is the job of federal district courts to craft evidence-related rules. After all, these are the judges who are closest to litigants and the mechanics of evidence protection. District courts don’t need to wait around for the Supreme Court to act on this, because the Federal Rules of Evidence left privileges to common law development in the district courts. And under the well-established balancing test that lower federal courts should follow when they create new privileges, we think our proposed privilege is an easy case: It serves a public purpose and protects what should be recognized as a valued interest of “transcendent importance” — privacy for our most intimate medical care.

The case for recognizing the privilege in respect to the recent subpoenas is especially strong: The attorney general is seeking to chill physicians from providing advice that is protected by the 1st Amendment and care that is guaranteed by federal statutes. Such subpoenas are directly at odds with the rule of law.

Today, it is trans kids; tomorrow, it will be people seeking an abortion or contraception. We should not have to wait for the federal government to go this far before our privacy gets the shield that it deserves.

Aziz Huq and Rebecca Wexler are professors of law at the University of Chicago Law School and Columbia Law School, respectively.

May 16 (UPI) — A federal judge will hear arguments Friday from the Trump administration to determine if the government has the legal privilege to not share details about its actions taken toward the return of Kilmar Abrego Garcia.

Abrego Garcia was deported in March to the supermax Terrorism Confinement Center prison, or CECOT, in El Salvador because he was an accused member of the MS-13 gang.

The U.S. Supreme Court ordered the Trump administration in April to return Abrego Garcia, who it said was illegally removed from the United States.

Abrego Garcia’s lawyers continue to try to bring him back but allege the federal government has purposefully delayed his return. The Trump administration has since invoked “state secrets privilege,” which allows an executive department to withhold information or evidence in a court case because the information or evidence could jeopardize national security.

The administration’s use of the privilege has presiding U.S. District Judge Paula Xinis to ask lawyers from both sides of the case to file added legal papers about the administration’s use of the privilege.

Abrego Garcia’s attorneys filed papers Monday that purport the government has yet to produce any evidence that it has done anything to facilitate the man’s release from imprisonment in El Salvador.

Abrego Garcia was born in El Salvador but entered the U.S. illegally in 2011 and had been living in Maryland. He was granted a withholding of removal legal status in 2019 that protected him from deportation due to the risk he would face upon a return to El Salvador from local gangs.

He was one of hundreds of migrants sent by the Trump administration in March to CECOT, and despite the government’s acknowledgement that he was incorrectly deported, he has been purported to be a member of the gang MS-13 by immigration officials.

Abrego Garcia’s legal team has argued that he was not only never part of MS-13, but was never charged or convicted of any crimes in the United States.

WASHINGTON — The Trump administration is invoking the “state secrets privilege ” in an apparent attempt to avoid answering a judge’s questions about its mistaken deportation of Kilmar Abrego Garcia to El Salvador.

U.S. District Judge Paula Xinis disclosed the government’s position in a two-page order on Wednesday. She set a Monday deadline for attorneys to file briefs on the issue and how it could affect Abrego Garcia’s case. Xinis also scheduled a May 16 hearing in Greenbelt, Md., to address the matter.

The Republican administration previously invoked the same legal authority to cut off a judge’s inquiry into whether it defied an order to turn around planes deporting Venezuelan migrants to El Salvador.

Abrego Garcia, 29, has been imprisoned in his native El Salvador for nearly two months. His mistaken deportation has become a flash point for President Trump’s immigration policies and his increasing friction with the U.S. courts.

Trump has said he could call El Salvador’s president and have Abrego Garcia, who was living in Maryland, returned to the United States. Instead, Trump has doubled down on his claims that Abrego Garcia is a member of the MS-13 gang.

Police in Maryland had identified Abrego Garcia as an MS-13 gang member in 2019 based off his tattoos, Chicago Bulls hoodie and the word of a criminal informant. But Abrego Garcia was never charged. His lawyers say the informant claimed Abrego Garcia was in an MS-13 chapter in New York, where Abrego Garcia has never lived.

The administration has balked at telling Xinis what, if anything, it has done to facilitate Abrego Garcia’s return to the U.S. The judge ruled that his lawyers can question several Trump administration officials under oath about the government’s response to her orders.

In a court filing Wednesday, his lawyers said they already have conducted depositions of three officials and are “still in the dark” about the government’s efforts to free Abrego Garcia. They are asking for permission to depose more officials, possibly including one from the White House.