We Are Not Cops
Healthcare workers should protect patients, not be snitches
As a physician and ethicist, patients and their families tell me their deepest health secrets: fears around life and death, things they have done or experienced that are embarrassing, private, and sometimes, even illegal. That trust is more important than any privacy law (and HIPAA is not nearly protective enough).
Patients’ stories are sacred. But data shows that patient trust around abortion care is being violated by healthcare workers.
The recent arrest of a South Carolina woman should remind society that healthcare workers have a sacred duty to protect patients and that laws harming them need to be fought, not tolerated or glorified.
Self-Managed Abortion
In October 2021, a 33-year-old South Carolina woman presented to an emergency room with labor pain. She disclosed that she had taken pills to end her pregnancy, and a fetus was stillborn (not born alive) at an estimated 25 and 4 days weeks. But it wasn’t until nearly a year later, in September 2022, that she was arrested for “performing or soliciting an abortion.”
According to Jezebel:
“The woman told healthcare workers that she had taken pills to end her pregnancy. The county coroner’s office reported the incident to Greenville Police a few days later, though it’s not clear if the hospital reported it to the coroner’s office first.”
Abortion remains legal until twenty weeks in South Carolina (for now), but the three abortion clinics (yes, only three clinics in the state) only offer care through 14 weeks. This means patients seeking abortion services in the state can’t effectively get access beyond 14 weeks, no matter how hard they try. Even though self-managed medication abortion is safe, South Carolina is one of three states to criminalize the practice explicitly.
Patients that didn’t die from pregnancy in South Carolina? The state aims to murder them.
Abortion is so safe that having an abortion is wildly, atronomically safer than giving birth in America. So for pregnant people who survive by virtue of abortion access? The state hopes to murder them by making abortion punishable by the death penalty.
They would rather see patients die from pregnancy-related complications than allow them to have access to safe abortion. It’s a bold choice in a state with an exceptionally high maternal mortality rate. In state comparisons, S.C. is in the bottom quartile for pregnancy outcomes.
Racism and Abortion
The woman who was arrested is identified as Black in the police report. When South Carolina’s maternal mortality data is disagregated for race, we see how Black people in particular die far more often from pregnancy than white people. How many more Black women will die because of these laws?
(Misogyny Side Bar: In reviewing the South Carolina abortion law, I see it is written as though all physicians in the state are men… “During the first trimester of pregnancy the abortion is performed with the pregnant woman's consent by her attending physician pursuant to his professional medical judgment.” It’s almost like the whole state is suffering from a lack of leaders who understand or care about the lives of women.)
Who is turning in the most patients to the cops? It’s Healthcare Providers.
Legal advocacy organization If/How/When’s wanted to know who was ratting out the most patients for self-managed abortion care. The results of their August 2022 report are clear:
It’s healthcare workers.
Between 2000 and 2020, there were 61 cases that “came to the attention of law enforcement” where individuals either self-managed an abortion or helped someone self-manage an abortion. The most police reports were made by care professionals: 39% were reported by health care providers. In addition, 26% were reported by friends, family, and partners of the pregnant person.
Some healthcare workers will report because they feel compelled by certain mandated reporting requirements or believe they are required to comply with requests for patient data. But others will see themselves as superior to or more moral than their patients and turn in patients willingly. Anti-abortion healthcare workers may even believe they are doing a good deed. Though to what end is not at all clear.
There is no benefit to society for this criminalization. Jailing people who induce abortions serves no societal purpose except to punish pregnant-capable people. We need comprehensive access to reproductive health care - not jails.
It will never be enough to remind healthcare workers to protect their patients. We need robust practice regulations and laws that explicitly deter and sanction healthcare workers who report to the police.
Criminalizing Pregnancy Loss
A healthcare provider can’t tell based on a fetus if medications like mifepristone and misoprostol were used to end a pregnancy. So in addition to criminalizing pregnant people who have abortions, patients who experience miscarriage will also be ensnared - and likely reported to police.
Each day as another anti-abortion law is passed, America becomes more like Venezuela and El Salvador, where women experiencing pregnancy loss (both intentional and unintentional) and the people who support them are jailed as murderers.
(In the future, I’ll write about the history of mandated reporting laws and their impact on confidentiality)
HIPAA Protections are not Enough
HIPAA provides some basic privacy protections, but it’s not the sweeping protection many Americans (including healthcare workers) think it is. In it’s current form, HIPAA is insufficient to protect patients from laws that are inhently hostile to pregnant people.
Healthcare workers who want to do the right thing in protecting patients are caught between their duty to patients and fear of legal retribution. It’s easy to say the patient’s privacy is paramount, but the fear is real, especially when some attorneys general have directly threatened abortion doctors.
Health and Human Services provided guidance on reproductive health info last year. The Proposed Modifications to the HIPAA Privacy Rule to Support Reproductive Health Care Privacy is still pending review.
To protect patients, healthcare workers should minimize the data they collect and protect what they do collect as effectively as possible. When mandated reporting is a factor, we need to do everything we can so patients know what not to disclose to doctors, nurses, and social workers.
Laws have been designed to push healthcare workers to prioritize draconian and misogynistic laws over patients and their welfare. It’s critical that healthcare workers and hospital systems understand that while it may be technically, legally permissible to report soemthing to law enforcement, it’s not the same as being required to do so.
I hope that the proposed modifications ensure state laws that are out of compliance iwth federal privacy laws get struck down. We must close these legal loopholes that condition and compel healthcare workers to turn against their patients.
We need it to be clear that health systems, healthcare workers, and health data companies primary responsibilities are to patients, not law enforcement.
I’m still amazed that Narxcare AI is not FDA approved as other AI medical algorithms are required to be and datamines EHRs and PDMPs for info such as a family history of substance abuse, a history of having been a victim of molestation, rape, assault, domestic violence (if you are female), the list goes on, so that a prescription can be denied because the patient is now considered high risk. It doesn’t depend on reporting; if you told someone once, or if it was entered in error, it can end up there. This is a tool of authoritarianism. And only the people directly affected by it seem aware of it.