In June 2022, the U.S. Supreme Court ruled in Dobbs v. Jackson Women's Health Organization that states may regulate the provision of abortion services,1 which could mean criminalizing abortion, including medication abortion. As a result, changing legal environments may create practice challenges for nurses caring for patients presenting with miscarriage or bleeding during early pregnancy. In areas where legal abortion is unavailable, people may seek abortion pills to end their pregnancies without clinician involvement, a practice called self-managed abortion.
Telemedicine and mail-order pharmacies can provide medically safe and effective medications (mifepristone and misoprostol) to terminate early pregnancies safely. Mail-order pharmacies often provide medications without clinician involvement, and evidence to date demonstrates both the safety and efficacy of this option.2 (See A Quick Guide to Medication Abortion.) Individuals can also obtain misoprostol by visiting countries, such as Mexico, where it may be available over the counter.
However, some pregnant people, lacking timely and legal access to abortion, resort to unsafe methods.3 As a result, as many as 39,000 women die annually from unsafe abortions, although that number may be underestimated given the poor statistical reporting systems in some countries.3
Individuals who follow World Health Organization (WHO) protocols to terminate their pregnancies at up to 12 weeks' gestation using mifepristone or letrozole plus misoprostol, or misoprostol alone, are unlikely to need hospital care. (See WHO Medication Abortion Regimens at < 12 Weeks' Gestation.3, 4) These regimens are safe and effective; typically, no additional medical care is needed beyond informational support.3 Severe complications are extremely rare.3, 4
Some patients, though, may present to EDs or ambulatory settings with bleeding, pelvic pain, or infection. These patients may require or desire clinicians to complete the abortion or to manage symptoms or complications. What then is the duty of the nurse when the cause of early pregnancy complications is either ambiguous or reported to result from an attempt to end the pregnancy? Does this responsibility change when abortion is criminalized in the state where the nurse practices?
ABORTION IN THE UNITED STATES
Approximately one in four women in the United States has an abortion in her lifetime.5 Most Americans who obtain an abortion (60%) are in their 20s, and 59% of women who have had an abortion have other children.6 Although people of all ages, races, ethnicities, and incomes have abortions, most (75%) are disproportionately poor or low income.6 They are also more likely to be Black, Indigenous, Hispanic, and other people of color4-8 due to a lack of equitable access to high-quality reproductive health services, resulting in a higher burden of unintentional pregnancy. Structural racism results in longstanding inequities in maternal morbidity and mortality that make continuing a pregnancy to term more dangerous, particularly for Black and Indigenous people.5 A recent estimate suggests that a nationwide total abortion ban in the United States would result in an increase in the lifetime risk of death from all pregnancy-related causes from 1 in 3,300 to 1 in 2,800 for all women.9 For non-Hispanic Black women, the risk would increase further, from 1 in 1,300 to 1 in 1,0009—three times that of the general population.
In 2019, the latest year for which data are available, the Centers for Disease Control and Prevention stated that 42.3% of all reported abortions in the United States were medication abortions (typically mifepristone followed by misoprostol) at nine weeks' or less gestation and 1.4% were medication abortions at more than nine weeks' gestation.8 These figures do not include self-managed medication abortions that were not reported to a health system; further, some jurisdictions do not report medication versus other types of abortion.8
Medication abortion as a proportion of all abortions has risen steadily over time.10 The increase accelerated in 2021, when the Food and Drug Administration began allowing telemedicine prescribing of abortion medications in response to the coronavirus pandemic. Medication abortions are anticipated to increase in the future, both despite and because of state-based changes in the legality of abortion provision.10 Online requests for self-managed abortion medications have increased since the Dobbs decision, particularly in states that severely restrict legal abortion access.11
Laws that criminalize abortion have a long history of causing harm, particularly to those whose position within social hierarchies makes them vulnerable.12, 13 For this reason, many organizations have publicly opposed making abortion illegal. In its information series on sexual and reproductive health and rights, the UN Office of the High Commissioner for Human Rights says, “Human rights bodies have repeatedly called for the decriminalization of abortion in all circumstances.”14 The American College of Obstetricians and Gynecologists (ACOG) opposes the criminalization of self-managed and clinician-assisted abortion, as do the National League for Nursing, Nurse Practitioners in Women's Health, American College of Nurse-Midwives, and Association of Women's Health, Obstetric and Neonatal Nurses.15-19 More than 70 other health care organizations have affirmed safe, legal abortion as an essential element of reproductive health care.20
ABORTION AND PATIENT PRIVACY
The Health Insurance Portability and Accountability Act of 1996 (HIPAA), developed by the U.S. Department of Health and Human Services (HHS) Office for Civil Rights, requires respect for the privacy and confidentiality of people deciding to self-manage abortion or receive telemedicine services.21 This means that nurses may risk penalties for HIPAA violations if they report suspected or patient-disclosed attempts at abortion to law enforcement, state agencies charged with the prevention of child abuse (such as child protective services [CPS]), or any other individual or entity not designated by the patient, in the absence of a court order or subpoena.
As of November 2022, no state required the reporting of people who attempt to end their own pregnancies.22 However, even before the Dobbs ruling, individuals in several states had been investigated owing to suspicions that they attempted to terminate their own pregnancies.23 Between 2000 and 2020, at least 61 people were criminally investigated because of allegations that they either ended their own pregnancies or helped someone else to do so.24 Of those 61, 39% were reported to authorities by health care providers and another 6% by social workers. Most (56%) were poor, and people of color were overrepresented. Prosecutors used criminal statutes such as concealment of birth, child abuse and assault, and homicide to charge alleged offenders, and homicide charges were twice as likely to be brought against racially minoritized defendants. Of the 61 cases on record, 87% resulted in arrest.24
HARMS OF REPORTING AND NURSING ETHICS
Black people and other people of color have historically been disproportionately targeted for the enforcement of laws governing behavior during pregnancy, such as drug use.25 This policing, which often starts with reports to authorities by professionals, increases distrust in the medical system and health care providers among communities of color.26 Moreover, clinician bias can influence reporting decisions,27, 28 so laws criminalizing abortion or risky behaviors during pregnancy will almost certainly contribute to structural racism, health disparities, and family disruption29 unless clinicians keep health information private.
There is no reason for clinicians to use a decision to terminate a pregnancy as grounds to report patients to CPS, since self-managed abortions do not endanger children in the home. Similarly, minors who use mifepristone and misoprostol to self-manage an abortion are not a danger to themselves or others.4
The American Nurses Association (ANA) Code of Ethics for Nurses with Interpretive Statements30 may help guide ethical decision-making for nurses who care for patients presenting for abortion-related health care, particularly in jurisdictions where the provision of abortion services is prohibited or restricted. Provisions 1, 3, 4, and 8 are particularly relevant to nursing practice involving pregnant patients in these jurisdictions.
Provision 1 speaks to the rights of patients to self-determination and to be cared for in accordance with their values. Patients have the “right to determine what will be done with and to their own person,”30 and a nurse must respect patient decisions even when those decisions may conflict with the nurse's own values. The Code of Ethics does not require support for or agreement with patient decisions but does require nurses to establish a relationship of trust, setting aside biases and prejudice.
Provision 3 establishes the duty of the nurse to protect and advocate for the rights, health, and safety of the patient, including the right to privacy and confidentiality.30 The Code of Ethics explicitly acknowledges the damage to the nurse–patient relationship that can result from a breach of confidentiality, resulting in loss of patient trust and jeopardizing patient well-being. However, the duty to protect confidential information may be limited, such as when disclosure is legally mandated due to public safety or health considerations.
Provision 4 establishes that nurses are accountable for their own conduct, though institutions may at times share responsibility.30
Provision 8 explicates a duty of the nurse to “advance health and human rights and reduce disparities” by collaborating “with others to change unjust structures and processes that affect both individuals and communities.”30
None of these provisions include a duty to participate actively in providing abortions or pregnancy terminations; provision 5.3 allows for the exercise of conscience by individual nurses.30 In nonemergent contexts, nurses may decline to participate in care to which they morally object.30 Provision 5 does not, however, give nurses the right to decline to participate in emergent care or to break patient confidentiality, nor does it supersede patient rights or duties to the patient.
ETHICAL REPORTING REQUIREMENTS FOR NURSES
Legal and ethical indications for reporting are rare, and the ANA Code of Ethics and federal law should inform nursing practice in the following instances.
Reporting suspicion of induced abortion to law enforcement. Unless state law explicitly requires it, nurses should not proactively report suspicion of abortion to law enforcement. Nurses should not release protected health information (PHI) to law enforcement or any other non-treating provider or agency without a subpoena or court order (in which case the PHI released must be restricted to the PHI requested). Disclosing PHI outside of these limited circumstances is a HIPAA violation and puts the nurse and the hospital at risk for fines and penalties.21
The following are real-world examples.21
- A law enforcement official goes to an ED and requests records of pregnancy outcomes for ED patients. Unless the request includes a court order or other legally enforceable mandate, the HIPAA “privacy rule” does not permit the ED to disclose the records or other PHI. Disclosure without a legal mandate is considered a breach of unsecured PHI and requires formally notifying both HHS and the patient.
- A law enforcement official presents an ED with a court order requiring the release of PHI about a particular patient. Only the PHI expressly contained in the court order may be disclosed by the ED.
Reporting intent to terminate a pregnancy. According to ACOG, it is inconsistent with professional standards of ethical conduct to disclose PHI about an individual's plans regarding contraception or pregnancy outcomes to law enforcement or others.15 The ANA specifically affirms the right to privacy for individually identifiable health information, including oral reporting, in all treatment settings and venues; use or disclosure of this information is prohibited unless required by law.31
A real-world example: In a state that bans abortion, a patient informs the nurse that she's planning to go out of state to secure an abortion. The nurse believes it appropriate to report the patient's plan to the police, to prevent the abortion. However, the HIPAA privacy rule forbids this disclosure of PHI because the HHS doesn't consider a statement of intent to terminate a pregnancy a “serious and imminent threat to the health or safety of a person or the public.”21 This act is also contrary to professional ethical standards, would violate the integrity of the nurse–patient relationship, and could harm the patient.
Reporting to CPS. Suspicion of abortion should not be a reason to contact a CPS agency, for these reasons:
- Historical precedent suggests that such reporting will disproportionately disrupt racially minoritized families and children. For instance, despite similar rates of substance use, Black women are more likely to be reported to CPS agencies than White women,32 and more likely to have parental rights terminated.33 Indigenous children are most at risk for legal separation from their parents.33
- There is no evidence that a minor patient or an adult patient's children are at any risk solely due to the patient's decision to end a pregnancy through self-managed abortion. To the contrary, many people ending a pregnancy do so to be better able to care for the children they have.34 The five-year Turnaway Study, which followed 813 women who presented for abortion, found negative effects on the children of women who were denied an abortion, including poorer maternal–child bonding, greater economic insecurity, greater exposure to interpersonal violence, and a nearly fourfold greater risk of growing up in poverty.35, 36
- Women who were able to access abortion in the Turnaway Study were three times more likely to be employed, less likely to need public assistance, and less likely to stay in abusive relationships.35, 36
A real-world example: A patient in a state that bans abortion claims she is having a miscarriage, but the nurse thinks the patient may have caused the miscarriage by using abortion medications. The nurse wants to report this patient to his county CPS agency because he believes the fetus was harmed through the mother's actions. As stated above, regardless of the nurse's personal beliefs, HIPAA does not permit release of PHI to government agencies such as CPS, as pregnancy termination is not considered a CPS-reportable issue.
EVIDENCE-BASED RECOMMENDATIONS FOR NURSES
Nurses come to work with a wide range of personal, religious, and spiritual beliefs regarding pregnancy and contraception. Fortunately, our professional societies provide clear principles to guide our actions in this complex and changing environment. The following recommendations for nurses who treat patients with self-managed medication abortion are supported by current evidence and guidelines.
Take a harm reduction approach. Nurses treat many conditions created by illegal or extralegal behavior that leads to ED visits, such as use of alcohol by minors, illegal drug use, or car accidents caused by excessive speed. None of these are mandated to report to law enforcement. All require nonjudgmental, compassionate care to preserve the patient's trusting relationship with the nurse.
Manage abnormal bleeding as you would spontaneous miscarriage,4 keeping in mind that the emotional support needs of the patient with self-managed medication abortion may vary significantly. Because bleeding in early pregnancy can have multiple causes, keep initial interview questions open ended so the patient can describe their situation in their own words and manage information disclosure; seek information only to the extent that management decisions may be affected, and support needs determined.4
Treatment may include uterotonic medications (such as misoprostol) or procedural interventions (dilation and aspiration and/or curettage).37 As with miscarriage, the presence of uterine debris on ultrasound only requires medical intervention if the patient is having severe pain or hemorrhaging.38 If the symptoms indicate unsafe methods of self-managed abortion, such as toxic ingestion or self-instrumentation, management proceeds based on the cause of the symptoms.39 The WHO recommends against the use of anti-D immunoglobulin—also called rho(D) or RhoGAM—at less than 12 weeks' gestation.3
Consider whether to document evidence of self-managed abortion. Carefully weigh documenting in the health record the use of mifepristone, letrozole, or misoprostol to bring about abortion, or the presence of any medications found in the vaginal vault. This information is usually unnecessary for care; recording it may cause significant harm.4 Documenting evidence of self-managed abortion may lead to delays in care, stigma, or inappropriate release of medical information to law enforcement by other members of the health care team.
Ensure patients are aware of their options when fetal cardiac motion is present and the pregnant person's health or life is at risk. These situations may include ectopic pregnancy, when urgent intervention is the standard of care, as the risk of expectant management (wait and see approach) can be tubal rupture, hemorrhage, and death; inevitable miscarriage due to medications or spontaneous abortion, where a dilated cervix may require intervention to prevent infection and sepsis; and individualized significant health problems that can be resolved or ameliorated only by terminating the pregnancy (such as obstetrical sepsis, severe early preeclampsia or HELLP [hemolysis, elevated liver enzymes, low platelets] syndrome).
Ensure patients receive an examination and/or treatment in hospital emergency settings. Under the federal Emergency Medical Treatment and Labor Act (EMTALA), when a pregnant patient presents to an ED and requests examination or treatment, the hospital must either provide stabilizing treatment or transfer the patient to another capable hospital that can. In guidance released in July 2022 and updated in October, the Centers for Medicare and Medicaid Services (CMS) clarified that EMTALA requirements preempt state laws and mandates that apply to specific procedures.40 (Active litigation interpreting the enforceability of the EMTALA guidance is ongoing.) Appropriate emergency care must be provided by physicians and hospital staff regardless of state abortion bans and restrictions.
Refer patients who need legal advice to resources such as If/When/How (www.ifwhenhow.org), a legal helpline for people who need information about their rights and self-managed abortion or other pregnancy termination services (see Figure 1).
Be aware of any harmful action or practice that disproportionately affects racially minoritized and other vulnerable individuals due to biases in reporting and justice system/child welfare system treatment. Endeavor to reduce disparities and promote social justice. Specifically, maintain patient privacy and avoid any reporting to law enforcement or CPS agencies that is not specifically mandated by law (see Figure 2).
IMPLICATIONS FOR NURSING PRACTICE
Nurses approach caregiving using personal codes of ethics and moral commitments, and these may sustain us in difficult situations. However, given that religious and spiritual views on reproductive health vary dramatically, nurses must turn to the ANA Code of Ethics for guidance. The Code of Ethics provides important principles to guide practice and behavior, and recent federal directives from the HHS have clarified federal privacy protections, which supersede state law.
Most important, in our care of patients, nurses should do no harm. Reporting patients to law enforcement can have devastating and lasting effects, including disrupting healthy, intact families and precipitating vulnerable families into poverty and homelessness. While nurses may not always agree with patients' choices, we must uphold their right to make decisions based on their own values and keep their health information private whenever we are legally able to do so.
Laws that criminalize abortion may negatively affect nurses as well as patients. Nurses risk moral injury when they wish to practice in accordance with their values and those of their patients but are legally prohibited from doing so. Moral injury can occur when nurses are placed in a situation where it is impossible or nearly impossible to act in a way that's consistent with their moral values.41 This is especially true when following the law may lead to patient harm.
Historically, “conscience clauses” have allowed nurses to opt out of providing nonemergency care when doing so would cause moral compromise. Nursing ethicists should urgently address the inevitable moral dilemmas nurses will face when they practice in states that criminalize abortion, where participation in necessary health care is prohibited even when it could preserve health and lives. People need access to safe, legal abortion when pregnancy threatens their futures, health, or lives or when pregnancy termination can reduce otherwise inevitable suffering.
If You Have Questions About . . .
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2. Moseson H, et al. Effectiveness of self-managed medication abortion with accompaniment support in Argentina and Nigeria (SAFE): a prospective, observational cohort study and non-inferiority analysis with historical controls. Lancet Glob Health
3. World Health Organization. Abortion care guideline
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4. Verma N, et al. Society of Family Planning interim clinical recommendations: self-managed abortion
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8. Kortsmit K, et al. Abortion surveillance—United States, 2019. MMWR Surveill Summ
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11. Aiken ARA, et al. Requests for self-managed medication abortion provided using online telemedicine in 30 US states before and after the Dobbs v Jackson Women's Health Organization decision. JAMA
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13. World Health Organization. Abortion care guideline: web annex A: key international human rights standards on abortion
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14. United Nations Office of the High Commissioner for Human Rights. Abortion
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15. American College of Obstetricians and Gynecologists. Opposition to the criminalization of self-managed abortion
. Washington, DC; 2022 Jul 6. Policy and position statements; https://www.acog.org/clinical-information/policy-and-position-statements/position-statements/2022/opposition-to-the-criminalization-of-self-managed-abortion
16. National League for Nursing. NLN strongly objects to Supreme Court decision to overturn Roe v. Wade, jeopardizing public health [press release]. 2022 Jun 24. https://www.nln.org/detail-pages/news/2022/06/24/nln-strongly-objects-to-supreme-court-decision-to-overturn-roe-v.-wade-jeopardizing-public-health
17. Nurse Practitioners in Women's Health. The National Association of Nurse Practitioners in Women's Health (NPWH) reproductive rights policy summary
. Washington, DC; 2022 May. Position statement; https://cdn.ymaws.com/npwh.org/resource/resmgr/positionstatement/npwh_reproductive_rights_pol.pdf
18. American College of Nurse-Midwives. ACNM condemns SCOTUS decision, Dobbs v. Jackson Women's Health Organization
; 2022 Jun 24. Statement; https://www.midwife.org/statement-acnm-condemns-scotus-decision-dobbs-v.-jackson-women-s-health-organization
19. Association of Women's Health, Obstetric and Neonatal Nurses (AWHONN). AWHONN responds to Supreme Court decision on Roe v. Wade [press release]. 2022 Jun 24. https://www.awhonn.org/awhonn-responds-to-supreme-court-decision-on-roe-v-wade
20. American College of Obstetricians and Gynecologists. More than 75 health care organizations release joint statement in opposition to legislative interference [press release]. 2022 Jul 7. https://www.acog.org/news/news-releases/2022/07/more-than-75-health-care-organizations-release-joint-statement-in-opposition-to-legislative-interference
21. U.S. Department of Health and Human Services, Office for Civil Rights. HIPAA privacy rule and disclosures of information relating to reproductive health care
. Washington, DC; 2022 Jun 29. https://www.hhs.gov/hipaa/for-professionals/privacy/guidance/phi-reproductive-health/index.html
22. Center for Reproductive Rights. After Roe fell: abortion laws by state
. 2022. https://reproductiverights.org/maps/abortion-laws-by-state
23. Diaz-Tello F, et al. Roe's unfinished promise: decriminalizing abortion once and for all
. Berkeley, CA: SIA Legal Team, Center on Reproductive Rights and Justice, University of California Berkeley School of Law; 2017 Nov 28. https://www.ifwhenhow.org/resources/roes-unfinished-promise
24. Huss L, et al. Self-care, criminalized: August 2022 preliminary findings
. Oakland, CA: If/When/How: Lawyering for Reproductive Justice 2022. https://www.ifwhenhow.org/resources/self-care-criminalized-preliminary-findings
25. Goodwin M. Pregnancy and the new Jane Crow. Conn Law Rev
26. Benkert R, et al. Ubiquitous yet unclear: a systematic review of medical mistrust. Behav Med
27. Palusci VJ, Botash AS. Race and bias in child maltreatment diagnosis and reporting. Pediatrics
28. Sedlak AJ, et al. Trends in child abuse reporting. In: Krugman RD, Korbin JE, editors. Handbook of child maltreatment
. Cham, Switzerland: Spinger International; 2022. p. 3–26. Child maltreatment: contemporary issues in research and policy.
29. Itzkowitz M, Olson K. Closing the front door of child protection: rethinking mandated reporting. Child Welfare
30. American Nurses Association. Code of ethics for nurses with interpretive statements
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31. American Nurses Association. Privacy and confidentiality
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32. Bridges KM. Race, pregnancy, and the opioid epidemic: White privilege and the criminalization of opioid use during pregnancy. Harv Law Rev
33. Wildeman C, et al. The cumulative prevalence of termination of parental rights for U.S. children, 2000-2016. Child Maltreat
34. Biggs MA, et al. Understanding why women seek abortions in the US. BMC Womens Health
35. Foster DG, et al. Comparison of health, development, maternal bonding, and poverty among children born after denial of abortion vs after pregnancies subsequent to an abortion. JAMA Pediatr
36. Foster DG, et al. Socioeconomic outcomes of women who receive and women who are denied wanted abortions in the United States. Am J Public Health
37. Shorter JM, et al. Management of early pregnancy loss, with a focus on patient centered care. Semin Perinatol
39. Orlowski MH, et al. Management of postabortion complications for the emergency medicine clinician. Ann Emerg Med
40. Centers for Medicare and Medicaid Services, Center for Clinical Standards and Quality. Reinforcement of EMTALA obligations specific to patients who are pregnant or who are experiencing pregnancy loss
. Baltimore, MD: Department of Health and Human Services; 2022 Oct 3. Ref: QSO-21-22-Hospitals. https://www.cms.gov/files/document/qso-21-22-hospital-revised.pdf
41. Moral Injury Project. What is moral injury
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