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 , any medical provider or business served with any civil, criminal or regulatory inquiry, investigation, subpoena or summons seeking 鈥渓egally protected health care activity鈥� 鈥渟hall not comply鈥� unless the provider notifies the state attorney general as well as others involved in the care.
The measure鈥檚 author, Assemblymember of Los Angeles, said the impetus for the bill, in part, was a federal subpoena from the Trump administration to Children鈥檚 Hospital Los Angeles seeking medical records for youth transgender patients.
鈥淣o one should have to fear that seeking lawful medical care in the state of California could put their privacy and their safety at risk,鈥� at a hearing last week.
Lawmakers AB 1930 at its first legislative hearing last week, despite the legal complexities and consequences for California鈥檚 patients, doctors, hospitals, insurers, tech companies and others. It passed on a party-line vote, according to the CalMatters . It now moves to the where it鈥檚 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鈥� medical records. At the time, the U.S. Justice Department said the subpoenas were part of an investigation into 鈥渉ealth care fraud鈥� and 鈥渇alse statements.鈥� Some of the families sued to fight the subpoenas. In January, and didn鈥檛 receive the records.
Rady Children鈥檚 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鈥檚 decision to , a decision that is now tied up in .
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 鈥減rofessional discipline.鈥�
The recipient would be required to inform the attorney general鈥檚 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 , 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. 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.
California laws prohibit state law enforcement from extraditing medical professionals who may have violated another state鈥檚 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鈥檚 other co-sponsor. Zbur before being elected to the Legislature.
Equality California鈥檚 legislative director, Craig Pulsipher, the measure builds 鈥渙n California鈥檚 existing protections to ensure that patients can access health care without fear that their personal information will be weaponized against them.鈥�
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鈥檚 influential business lobby said CalChamber鈥檚 members appreciate lawmakers wanting to 鈥渉elp defend businesses facing subpoenas,鈥� and they don鈥檛 oppose the bill out of 鈥渟upport for misuse of subpoena powers.鈥� 鈥淗owever, we are concerned that AB 1930 will compel businesses to violate federal law in order to comply with state law,鈥� they wrote.
Layla Jane, a 鈥渄etransitioner鈥� who 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. 鈥淭his bill shields providers so they can keep chopping up bodies,鈥� . 鈥淚t wraps the doctors, the clinics, the gender industry in a legal blanket and says, 鈥榊ou are protected from accountability no matter who you harmed.鈥� There is no blanket for me.鈥�
Would the bill survive a legal challenge?
Bill Essayli, a former Republican state lawmaker who oversees the U.S. Attorney鈥檚 Office in Los Angeles, said in a statement that Zbur鈥檚 measure would be unconstitutional.
鈥淎ny effort by California to restrict the federal government鈥檚 lawful use of, or compliance with, subpoenas is unlawful and unenforceable under the Supremacy Clause,鈥� 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鈥檚 legal authority.
鈥淚f there鈥檚 a conflict between federal law on the one hand, and state or local (law) on the other, federal law wins out,鈥� 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 California鈥檚 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鈥檛 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.
鈥淚t looks like the federal government could say you鈥檙e impeding their law enforcement,鈥� said Leslie Gielow Jacobs, a law professor at University of the Pacific McGeorge School of Law.
鈥淚s this impeding federal 鈥� objectives?鈥� said Vikram David Amar, a law professor at the UC Davis School of Law. 鈥淚f so, it would be invalid under Supremacy.鈥�
The California Attorney General鈥檚 Office responded to an interview request for Bonta with an unsigned written statement.
鈥淏ills aren鈥檛 final when they鈥檙e introduced and can change throughout the legislative process,鈥� it read. 鈥淥ur office will continue to have conversations with stakeholders regarding AB 1930 and will address concerns as appropriate and needed.鈥�
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