State-based abortion bans throughout the country have been choking off access to abortion care, including clinic-based and telehealth care. While these laws are designed to directly target abortion providers with civil and criminal penalties, they also indirectly increase the likelihood that other people may fall prey to the criminal legal system, particularly those who self-manage their abortion and those who support them. Although only two states have laws prohibiting self-managed abortion, politically and ideologically motivated police and prosecutors in other states are more than willing to warp existing laws and misapply them in order to punish people seeking to manage their own care. As a result, more people will be unjustly interrogated, arrested, and prosecuted for allegedly ending their own pregnancies.
Robust evidence clearly shows that when people have access to information, support, and resources, self-managed abortion is medically safe. Yet, they may face legal risks. Importantly, legal risk is different for each person. Moreover, that risk is shaped by where someone lives, whether their community is already targeted or surveilled by law enforcement, and whether they seek care from healthcare professionals. If/When/How’s recent study found at least 61 instances where people were investigated or prosecuted for allegedly self-managing an abortion or helping others self-manage. Among the cases involving adults, 26% were reported by acquaintances (including family, friends, and neighbors) and 45% were reported by care professionals (including doctors, nurses, and social workers) after seeking care.
We, as a provider of abortion care and a lawyer advocating for abortion access, are alarmed by these data. We believe there is no place for the criminal legal system in healthcare spaces. The fear of criminalization and/or reporting to law enforcement agencies keeps people from seeking care and causes harm. It pits patients against providers. It is antithetical to care and misaligned with medical ethics and public health principles. There is absolutely no mandate to report patients to law enforcement for having an abortion or experiencing pregnancy loss. In fact, there is no underlying crime in nearly all states. As If/When/How’s research shows, investigations and arrests typically involve overzealous prosecutors misusing criminal laws that aren’t meant to apply to self-managed abortion.
We want mandatory reporters — those individuals required by state law or policy to report incidents like abuse, certain injuries, and other situations — to know that they can help stop the targeting and criminalization of their patients before it happens. No state’s mandatory reporting law requires providers to report to law enforcement the suspicion (or confirmation) of a person’s attempt to self-manage their abortion. Nor should they. Doctors, nurses, and other care providers should not be put in the position to act as agents of the state — interrogating, surveilling, and criminalizing individuals for seeking care. In fact, absent a specific requirement in the law, reporting a patient to law enforcement for self-managing an abortion is a HIPAA violation. Healthcare providers who violate patient privacy rights could face repercussions through their institution, their licensing board, or a lawsuit brought by the aggrieved patient.
Whether criminalization has occurred out of malice or simply due to ignorance of reporting requirements, clinicians, social workers, and other clinical support providers have caused substantial harm to patients by calling law enforcement after the loss of pregnancy because they suspect the miscarriage was intentionally induced. That is why it must be made clear: even when people present for care as a result of complications related to self-managing their abortion or pregnancy loss, healthcare providers have an ethical and legal responsibility to safeguard patients’ health information.
The harms of criminalization are not limited to cases where an individual is directly investigated, arrested, or prosecuted. Indeed, the American Public Health Association and American College of Obstetricians and Gynecologists both recognize and officially oppose the criminalization of self-managed abortion, noting that it keeps people from seeking care and jeopardizes the patient-provider relationship. Although self-managed abortion is overwhelmingly safe and effective, there is a fraction of instances where a person requires medical intervention, and they should not feel afraid to seek help and support. The same is true for those experiencing pregnancy loss, including stillbirth and miscarriage. When individuals are criminalized for suspicion of self-managing their own abortion, all reproductive healthcare is impacted.
It is critical to examine the role of racism and discrimination in the surveillance, reporting, and criminalization of individuals for their pregnancy outcomes. The harms and consequences of criminalization are not felt equally. People of color, those with low incomes, and young people are disproportionately targeted, and data from National Advocates for Pregnant Women show that healthcare providers are more likely to report people of color or those with low income, as opposed to white, wealthy individuals experiencing similar circumstances. Like most systems and structures, the fields of medicine and law must grapple with the role that racism and bias play in the criminalization and surveillance of people seeking care.
Simply put, reporting patients to law enforcement causes harm. It does not keep people safe. It does not stop people who need abortions from having abortions. While we recommend that people investigate their local reporting requirements and consult an in-state attorney, we can confidently say there is no reason to report a pregnant person, or a person experiencing a pregnancy loss, to law enforcement. Abortion is a human right, and people will have abortions whether they are banned or not. People who self-manage, or experience a pregnancy outcome such as a stillbirth or miscarriage, need to be met with compassion and care — not surveillance, suspicion, and threats.