CONFIDENTIALITY
Patient information should be confidential, and only directly relevant data should be gathered, documented, and shared with those immediately involved in the person’s care or as requested by the person receiving care. Clinicians should always speak directly to the patient rather than a support person. Information that will not affect clinical care, including history of medications to induce bleeding, and immigration or employment status should not be asked about or included in health records because it is irrelevant to the treatment course.
Exceptions
Specific exceptions to the duty of confidentiality include compliance with:
- Infectious disease reporting to Health Department
- Mandated reporting of suspected child abuse
- Mandated reporting of intimate partner violence—it is important to know the laws of your state because not every state requires reporting in instances of IPV.
- A formal subpoena (in this case, it is recommended to pause for legal advice)
- Insurance company billing (patients wanting to submit claims should be warned that insurers may mail to home address)
Disclosure of confidential information under any other circumstance is a breach of confidentiality. Inform people up front and in plain language of your role as a mandatory reporter and what types of information will trigger your responsibility to report. If a mandated reporting responsibility is triggered, provide required information only. To date, there is no mandated state law or policy to report a suspected abortion to law enforcement or child-protection agencies, and doing so could be a HIPAA violation.
Additional Resources
- Beyond Do No Harm: 13 Principles for Health Care Providers to Interrupt Criminalization
- If/When/How Technical Assistance for Health Care Providers
Preventing Criminalization
Providers have a powerful role in preventing and interrupting the criminalization of people in healthcare spaces. Rates of criminalization of pregnant people who lose or allegedly end their pregnancies are on the rise as so-called “fetal personhood” theories gain momentum (Kavattur 2023). Low-income people, people who use criminalized substances, and BIPOC people disproportionately experience pregnancy criminalization (Kavattur 2023). Health care providers are the most frequent source of reports to police resulting in pregnancy criminalization (Huss 2023, Kavattur 2023), thus having the greatest power to interrupt it.
Considerations for Care
- Be informed about legal risks. While no state currently mandates reporting known or suspected SMA, individuals may still face prosecution if reported.
- Practice transparency with all people so they can make informed decisions about what to disclose.
- Commit to patient safety and evidence-based support. Regardless of how someone accessed abortion care, clinicians should focus on offering compassionate, evidence-based care.
- History taking should focus on clinical management questions aligned with protocols for early pregnancy loss (EPL).
- Clinicians can help protect people by avoiding documentation related to SMA and staying informed on legal protections. If/When/How’s Technical Assistance Program can help providers navigate legal complexities and uphold confidentiality.
- Clinicians can also be conduits to legal support instead of criminalization. They can share If/When/How’s Repro Legal Helpline with people with legal questions or facing threat of criminalization.
- Protecting people seeking care may mean challenging misinformation within institutions. Hospital legal teams may not understand SMA-related laws. Establishing institutional protocols that prioritize privacy and align with evidence-based care are key steps.
- Beyond clinical care, continue to advocate for policies that decriminalize SMA.
Additional Resources: