Preliminary Risk Management Guidance in the Face of Dobbs

July 7, 2022

The recent United States Supreme Court decision, Dobbs v. Jackson Woman’s Health Organization (Dobbs), which overturned Roe v Wade, represents a powerful change in our society that has stirred very strong emotional responses for many of us. Although the primary issue is how Dobbs will impact women in states which outlaw abortion, the decision has the potential to create ethical, legal, and risk management conundrums for psychologists.  

What We Know: At this point, several states have already made abortion illegal or strictly regulated its practice. Other states may follow. Those with known legal risks include: abortion providers; those who recommend or who help others to obtain abortions; and women who seek abortions. For the most part, psychologists are not included in this group and are not at immediate risk. However, there are several possible scenarios which may put psychologists at risk in the future.

Why So Many Unknowns?: Currently, due to the uncertainty about how matters will proceed in the wake of Dobbs and the many yet-unanswered questions, it is not possible to give detailed or specific guidance to psychologists about particular Dobbs-related risks.  Each state that chooses to ban abortion will have to pass additional legislation, issue regulations or judicial decisions, or exercise prosecutorial discretion before the specific risks can be ascertained.  These actions are likely to be challenged in court.  Licensing Boards will have to weigh in when they get complaints against psychologists. All of this will take some time--months rather than weeks. 

Practice Considerations: The Trust, in consultation with other organizations, is committed to providing timely guidance as information becomes available. It is unlikely that psychologists will immediately have to change the way they are practicing, but psychologists should avoid giving direct recommendations regarding abortion or engaging in activities such as driving clients across state lines or financing such trips.  We encourage our insureds to continue to provide the competent services they always have and to strive to manage personal responses to recent developments that may compromise the delivery of such services.

Many of our policyholders may want to engage in activities which challenge this decision. So long as those actions do not involve one’s clients, there is minimal professional risk insofar as political advocacy is a protected activity. 

Examples of Potential Issues and What We Know So Far: 

Confidentiality and privilege: Confidentiality and privilege statutes provide strong protections for the privacy of the work between psychologists and patients/clients. HIPAA also provides considerable protection, and many state laws that provide stronger protection take precedence over HIPAA. Psychologists can create “psychotherapy notes” (a second set of notes kept apart from the required chart notes) that have additional protection in some states. Do be aware, however, that psychotherapy notes are still potentially discoverable in legal proceedings, so they do not guarantee privacy. Even if abortions are classified as crimes, almost all jurisdictions would enforce the privilege. Post-Dobbs, however, there are some potential new threats to the confidentiality and privilege that protect patient communications to psychologists.  For example, some states may seek to define fetuses as persons or as children, which, in turn, may mandate child-abuse reporting by psychologists or impose a Tarasoff responsibility on psychologists when patients express the intent to obtain an abortion.  HHS has recently declared that HIPAA does not permit reporting a patient’s/client’s decision to have an abortion as a Tarasoff situation, unless a specific state law requires the making of a report to the authorities.  At this time, we are not aware of any state that has enacted such a law, but that could change. 

Interstate practice:  There will also be complexity about interstate practice by therapists in states that permit abortion who are providing services to patients/clients located in states where abortion is prohibited.  Where are these sessions actually deemed to take place? If they are deemed to take place in the states with abortion bans, can those states gain civil or criminal jurisdiction over the out-of-state psychologist? The short answer is that it is not fully clear.  We know that to charge an out-of-state psychologist criminally, the courts would have to extradite the out-of-state psychologist.  This is a very expensive and complicated process. Moreover, states that legally permit abortions can resist the extradition of its residents (including psychologists) to abortion-prohibiting states.  Moreover, at least one state has already legislatively proposed such an extradition ban.  But there is little clarity on these issues at present.

Ethical Conflicts: Section 1.02 of the APA Ethics Code states:

1.02 Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority 
If psychologists’ ethical responsibilities conflict with law, regulations, or other governing legal authority, psychologists clarify the nature of the conflict, make known their commitment to the Ethics Code, and take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights. (Emphasis added).  

Many psychologists consider a woman’s right to control her body and to choose to have an abortion a human right and, therefore, laws banning abortion would be a violation of a woman’s human rights.  It is not yet known what influence this belief will have on licensing boards who adjudicate complaints against psychologists for not making abortion-related reports that are mandated by a state’s law.  At this point, a decision to consciously violate such a statute may be regarded as an act of civil disobedience and may not lead to prosecution, but only time will show how licensing boards will deal with these situations.  

Anyone who is monitoring practitioner listservs can see that many of our colleagues are deeply upset by the Dobbs decision and its implications and are struggling to find some way that they can engage in effective advocacy, both politically and personally. For some of us, particularly those who work with those most likely to be impacted by the decision, we are likely to experience strong personal reactions.  As always, being aware of one’s reactions is the best strategy, but consulting with colleagues about how your feelings may impact your work is also one of the best ways to ensure that it doesn’t negatively interfere with your patients’/clients’ treatment. Political advocacy and personal advocacy activities are important, but one should be careful to keep these activities separate from your professional work with your patients/clients.  One example: Some internet posters have volunteered to be drivers for individuals who need abortions to states where they are available.  This is certainly one way to take action.  However, offering to drive your current or former patients/clients or their family members or providing financial assistance runs the risk of being seen as a boundary violation and could result in a successful licensing board.  

Risk Management Advice:

  1. Avoid the above-discussed boundary violations with patients/clients.
  2. At this time, it is hard to imagine that psychologists will be at serious risk by listening to a client discuss their thoughts and feelings about what to do regarding an unwanted pregnancy. However, it is important for psychologists to be aware of and careful about their own personal reactions. The safest option is for psychologists to remain neutral about the subject. Patients/clients, even those who are not considering an abortion, may want to discuss what Dobbs means and may press psychologists for their opinions on the decision. 
  3. Consulting with colleagues will be very important for all of us when we are faced with abortion-related situations that engender powerful feelings, or when dealing with novel situations where legal and other related ramifications are not yet clear.
  4. Take careful notes about conversations you have with patients/clients on the topic of abortion.  You may want to consider noting these discussions in your “psychotherapy notes” (a second set of notes kept apart from the required chart notes), which can provide an extra level of privacy protection in states that recognize such notes.  
  5. Be mindful of what you choose to post on social media sites.
  6. If you are practicing under PSYPACT, be aware of the laws of any states you are practicing into and be prepared to obtain consultation on abortion-related issues that may arise in doing interjurisdictional work.
  7. When faced with difficult situations, call The Trust Advocate 800 Program (800-477-1200) for a consult.
  8. Try not to condemn colleagues who disagree with you. 

The Trust is committed to using our resources to follow developments and provide guidance as new information allows, so as to assist our insureds in knowing and managing risk.  At this point, we encourage you all to continue to help your clients and to tend to your own self-care in these difficult times.  Your good sense and compassion are needed more now than ever.

NOTE: This information is provided as a risk management resource and is not legal advice or an individualized personal consultation. At the time this resource was prepared, all information was as current and accurate as possible; however, regulations, laws, or prevailing professional practice standards may have changed since the posting or recording of this resource. Accordingly, it is your responsibility to confirm whether regulatory or legal issues that are relevant to you have since been updated and/or to consult with your professional advisors or legal counsel for timely guidance specific to your situation. As with all professional use of material, please explicitly cite The Trust as the source if you reproduce or distribute any portion of these resources.