Ken Paxton

Texas Attorney General Ken Paxton has once again come up with a novel way to be hideous and vile. And true to form, it’s of dubious legality — his signature move.

On November 17, the AG’s consumer protection division subpoenaed Seattle Children’s Hospital for records pertaining to gender affirming care for minors from Texas. No, not Seattle, Texas, a place which apparently exists. Paxton sent his demand to Washington, since that’s where they keep Seattle Children’s Hospital.

“The Consumer Protection Division has reason to believe that a “person,” as defined by the [Texas Deceptive Trade Practices Act], is engaging in, has engaged in, or is about to engage in an act or practice declared unlawful by the DTPA,” it warned, before demanding detailed information on all gender affirming care rendered by Seattle Children’s to children who “reside(d) in Texas.” The AG insists that doctors disclose the diagnoses, prescriptions, treatment plans, and surgical interventions for minor patients. (It should be noted that, while Paxton accuses doctors of “chopping off boys’ and girls’ private parts,” surgical intervention for minors is vanishingly rare.)

In response, SCH filed a special appearance on December 7 in the District Court for Travis County contesting the AG’s jurisdiction over a medical facility four states and 2,000 miles away. Alternatively, it asks the court to pare back the demand so as to comply with Texas and Washington law.

The hospital admits that it does have a license to do business in Texas and that it “employs a limited number of individuals who work remotely and reside in Texas,” but describes them as “administrative employees” who don’t provide treatment or support for gender affirming medical services. SCH has no clinical staff in Texas who provide gender affirming care to minors and does not provide such care via telemedicine. Citing its lack of a bank account, place of business, or advertising in Texas, the hospital insists that it is beyond the reach of the state’s long-arm statute.

Calling the subpoenas “an unconstitutional attempt to investigate and chill potential travel by Texas residents to obtain healthcare in another state,” the petition notes that Washington’s own laws, as well as the federal Health Insurance Portability and Accountability Act (HIPAA) prevent exactly this kind of disclosure.

To wit, Washington’s “Shield Law” bars law enforcement and court officers in the state from cooperating with subpoenas related to abortion and gender-affirming care from states which ban it. The law prohibits Washington entities, such as Seattle Children’s, from complying with such subpoenas or providing information to so called “ban states.” SCH claims that it would be illegal for it to comply with such a subpoena, and furthermore that cloaking a demand for medical records as a consumer protection act is a “sham.”

Which, of course, it is.

Paxton has called gender affirming care “child abuse” and gone after parents who secure it for their transgender children. And now, in the same way as he’s threatened non-profits which pay for women to leave Texas to access abortion care, the AG is now targeting out-of-state providers who dispense care to trans kids from Texas whose parents have the wherewithal to get them to Washington to access the medical care they need.

But ultra vires actions are very much Paxton’s thing, and we can expect to see lots more of them in the new year.

Seattle Children’s Hospital sues Texas Attorney General over trans patient records [Texas Tribune]

Liz Dye lives in Baltimore where she writes the Law and Chaos Substack and appears on the Opening Arguments podcast.

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