An excerpt from our Medical Editor in Chief Dr. Cedric Dark : As you read our August issue, may also notice a theme emerging from some of the other pieces in this issue: they touch on controversial issues. This is both a symptom and side-effect of our current social, political, and professional climate. The topics discussed in this issue are meant to highlight the work, and the worries, of our profession. No matter which side you take, each topic affects us all professionally and personally. Our diversity of experience and opinion is what makes emergency medicine, the American College of Emergency Physicians, and America itself enriching. I hope that you will enjoy reading this issue, and most of all, learn something new from what you find inside.

With Roe v. Wade overturned by the recent Dobbs v. Jackson Women’s Health Organization Supreme Court decision, emergency physicians willsee an increase in patients seeking care after a self-managed abortion.¹ The primary risk of most self-managed abortion is not medical but legal. Self-managed abortion is a crime in three states (Nevada, Oklahoma, and South Carolina), but the lack of an explicit crime in other state codes does not stop overzealous law enforcement actors from unlawfully arresting, charging, and imprisoning individuals for allegedly self-managing their own abortion care.² Criminalization of self-managed abortion falls most heavily on people who are already part of communities facing increased surveillance by law enforcement, namely, people with low incomes and people of color. Emergency physicians should be aware of first amendment protections for speech about self-managed abortion; legal protections for post-abortion care; the potential conflicts of state law with federal laws like HIPAA and EMTALA; the harm that can be caused by reporting self-managed abortion to law enforcement; as well as the risks of and protections against patient criminalization.

The First Amendment protects your right to give medical and legal information about self-managed abortion, but not necessarily medical and legal advice.

The First Amendment protects the right to freely share information with one another. However, those protections do not extend to aiding or facilitating a criminal action. Regardless of its legality, counseling a patient about safe methods of self-managed abortion is a harm reduction practice and something that emergency physicians can participate in without obvious legal risk. Similarly, sharing resources about self-managed abortion, such as abortionpillinfo.org, and about the legal risks of self-managed abortion, such as reprolegalhelpline.org, is a harm-reduction practice that falls within the confines of First Amendment protected speech as of this writing. Though these activities are protected by current First Amendment law, this does not account for hospital administrators or other hospital policies that may conflict with the law and stifle your ability to speak to your patients about their reproductive health. That said, it is legally riskier for emergency physicians to share sources of abortion pills, or otherwise direct patients as to how they can access methods of self-management, as this may be seen as facilitating a criminal act depending on state laws.

Post-abortion care after fetal demise is no legally riskier than miscarriage management.

Emergency physicians frequently provide care to people engaged in legally risky or prohibited activity such as sex work or use of illegal substances; self-managed abortion is no exception in states where abortion is criminalized or illegal. Providing care to someone experiencing a complication of self-managed abortion after fetal demise is no legally riskier for emergency physicians than treating someone experiencing a complication of miscarriage. In fact, providing treatment after a self-managed abortion with pills is identical to post-miscarriage treatment. Providing treatment prior to fetal demise is a more legally complicated question which will depend on the wording of the abortion laws in your state.

Generally, self-managed abortion is not something emergency physicians need to report to authorities and doing so is likely a HIPAA violation.

Emergency physicians are mandated by law to report certain incidents, such as some injuries and vital statistics information like fetal deaths. Currently, there is no law in any state that requires an explicit report of self-managed abortion or of the intention to self-manage. In fact, recently released HIPAA guidance makes clear that in the absence of an explicit law requiring a report, reporting a self-managed abortion to law enforcement is an unpermitted breach of protected health information.³ In most states, emergency physicians are still obligated to report to public health authorities abortions that they themselves perform or abortion complications they treat. This may include self-managed abortion in some states. Emergency physicians may also be required to report injuries they treat arising from unsafe methods of self-managed abortion, such as injuries from sharp objects or assault. However, in the vast majority of these cases where a physician is not mandated to report, disclosing a self-managed abortion to law enforcement is unnecessary and could harm the patient by contributing to criminalization.² Mandatory reporting is fraught with racial and class bias.⁴ Emergency physicians should consider and take steps to mitigate potential harms associated with mandatory reporting, such as ensuring a patient is aware of what the emergency physician is required by law to report.

Providing stabilizing care is required under EMTALA.

Some physicians have expressed concerns that state laws banning abortion have the potential to restrict a physician’s ability to offer stabilizing care in a medical emergency. The federal government recently released guidance clarifying that “[e]mergency medical conditions involving pregnant patients may include, but are not limited to, ectopic pregnancy, complications of pregnancy loss, or emergent hypertensive disorders, such as preeclampsia with severe features.”⁵ More guidance is needed to determine the extent of EMTALA protections for physician actions. However, it is clear that EMTALA preempts state laws restricting the ability of physicians to provide stabilizing care in an emergency situation, including abortion care.

Careful medical charting can help prevent patient criminalization.

Medical charts keep a record of patient care, but they are also frequently weaponized in criminal proceedings against a patient or an emergency physician. As such, emergency physicians should be wary of including information in a medical chart that is neither required by law, nor clinically significant for a future medical professional to have on hand.

Emergency physicians must prepare for an increase in patients with complications from abortion and be aware that those patients may be criminalized.

Criminalization is a health hazard—the risk or possibility of arrest deters patients from seeking health care, potentially subjecting them to inhumane, unsanitary, and dangerous conditions. Criminalization itself takes patients away from their families, and can cause the loss of employment, income, and dignity. The duty to do no harm can be an important reminder of your commitment as a medical professional as it relates to post-abortion care, regardless of how you personally feel about abortion itself. Emergency physicians should decide their own personal risk level and work with an attorney who understands the specific laws in your state to navigate a post-Roe landscape.

Lauren Paulk (@laurenbpaulk) is Senior Research Counsel at If/When/How, where she focuses on in-depth legal research in support of If/When/How’s litigation and policy team and state and grassroots advocates.

References

1. Self-managed abortion: know your rights. Repro Legal Helpline. Available at: https://www.reprolegalhelpline.org/sma-know-your-rights/. Accessed Aug. 1, 2022.
2. (OCR) Ofor CR. HIPAA privacy rule and disclosures of information relating to Reproductive Health Care. HHS.gov. Available at: https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/phi-reproductive-health/index.html. Accessed Aug. 1, 2022.
3. Huss, L., Diaz-Tello, F., & Samari, G. (2022). Self-Care, Criminalized: August 2022 Preliminary Findings. If/When/How: Lawyering for Reproductive Justice. https://www.ifwhenhow.org/resources/self-care-criminalized-preliminary-findings/
4. End surveillance of families. upEND Movement. https://upendmovement.org/end-surveillance-families/. Accessed Aug. 1, 2022.
5. Reinforcement of EMTALA obligations specific to patients who are pregnant or are experiencing pregnancy loss (updated July 2022). CMS. Available at: https://www.cms.gov/medicareprovider-enrollment-and-certificationsurveycertificationgeninfopolicy-and-memosstates-and/reinforcement-emtala-obligations-specific-patients-who-are-pregnant-or-are-experiencing-pregnancy-0. Accessed Aug. 1, 2022.