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Pregnancy Test
by Allan Barsky, JD, MSW, PhD
When the Supreme Court of the United States overturned Roe v. Wade (1973) in its decision, Dobbs v. Jackson Women’s Health Organization (2022), the majority found that the U.S. Constitution does not include a right to privacy and does not confer a right to abortion. Without a federally recognized right to access abortion, each state may enact its own laws supporting or restricting access to abortion. In states that already have laws restricting or prohibiting abortion, these laws may now be enforced. Many states are currently considering additional legislation, some of which are further restricting access and some of which are protecting access.
The effects of the Dobbs’ decision will have far-reaching effects on the lives of many people. The purpose of this article is to explore ethical issues for social workers who want to assist those seeking abortion care, but are practicing social work in states that prohibit or restrict access to abortion-related services.
Know Your State’s Laws
Social workers should be aware of the laws that provide access to, restrict, or prohibit abortion in the states where they provide services. There are several organizations keeping track of abortion laws (e.g., https://reproductiverights.org/maps/abortion-laws-by-state). Beyond knowing whether there is an abortion-related statute on the books, it is important to know whether the law is currently being challenged in the courts and whether it is currently being enforced. During constitutional challenges, courts may either allow the law to remain in effect or enjoin the law, meaning that it is not enforceable until the court issues a final decision. In Florida, for instance, there is currently a challenge to its abortion laws based on the Florida Constitution, which provides a specific right to privacy and may confer a right to access abortion care.
Current laws regarding abortion vary significantly from state to state. Some states have outright abortion bans. Some prohibit abortions after a specific timeframe (e.g., 22 weeks, 15 weeks, or when heartbeat is detected at about 5 to 6 weeks of gestation). Other states make it more difficult to access abortion by requiring people to endure transvaginal ultrasounds, counseling, extra appointments, waiting periods, or other procedures prior to being eligible for abortions.
Some states with prohibitions have exceptions for situations involving rape, incest, or risk to the life of the person who is pregnant. Other states may not have some or all of these exceptions. Another type of barrier to access are laws prohibiting public or private insurance from covering the costs of abortion care. Some states are considering laws that criminalize helping someone cross state or international borders to obtain an abortion. These laws could be unconstitutional; however, this issue has not been tested in court. Various states also have laws requiring parental consent before a minor can access abortion, including prohibitions against helping a minor travel to access abortion care.
In addition to knowing about abortion-related laws that apply to everyone in your state, also consider whether there are abortion-related laws or regulations that apply to your practice setting or context of practice. School social workers, for instance, may have specific restrictions on whether or how they can discuss abortion with students (with or without parental consent).
If you are not sure of the current status of abortion laws in your state, consult with your local NASW chapter, abortion rights organizations, or your attorney. Remember, laws vary from state to state. They may also change quickly due to legislative reforms or new case precedents.
Ethical Issues for Social Workers Post-Dobbs
This article is not meant to debate whether there should be an absolute right to abortion, restricted rights, or any specific types of prohibitions. Rather, this article focuses on the role of social workers who may have clients requesting assistance with abortions. In states without abortion prohibitions or restrictions, social workers may provide assistance without fear of violating state laws. If they have religious or moral objections to abortion, they may refer clients to other social workers or service providers who can assist them (NASW Code of Ethics, 2021, s.1.16). Social workers should not impose personal views or beliefs on clients (s.1.06[b]).
So, given the Dobbs decision, what types of ethical issues may arise in states that restrict or prohibit abortion care? Consider the following four scenarios:
1. Unsafe Abortions
Alexa lives in a state that prohibits abortion at 6 weeks, without exception. She was not aware that she was pregnant until after 6 weeks and she cannot afford to go to another state for abortion care. She informs you, her social worker, that she plans to obtain an abortion from someone locally, although the person lacks medical training and is providing abortions in an unsafe manner.
Social workers believe in a client’s right to self-determination (s.1.02), including a right to make decisions about their health care. Ethically, however, this situation raises issues about the protection of Alexa’s life and safety. Self-determination does not mean that a social worker should say nothing about a client’s plans or support them without question. The principles of informed consent (s.1.03) suggest that clients have a right to make fully informed decisions. In this situation, it would be incumbent on the social worker to provide Alexa with access to information that may broaden her choice set and allow her to make more fully informed decisions.
For instance, are there resources available to help Alexa travel to a state and to a provider who can provide safe and legally authorized abortions? Would Alexa be a good candidate for a medication abortion (pills that may be used to end early pregnancies), and how could she access the appropriate medication and support in a safe and legal manner? What are the risks of seeking an abortion with a provider who is not medically trained and may be operating in unsafe conditions? What legal risks may arise, for the client or others, if the client obtains an abortion from this provider?[1]
Some states have or are considering laws that provide criminal and/or civil penalties for anyone who “aids or assists” with having an abortion. In these states, social workers or other helping professionals could be put at risk for referring or connecting clients with abortion services. Depending on how these laws are interpreted, even engaging clients in a supportive discussion regarding plans for having an abortion could put social workers at risk. Given that the Dobbs case is so recent, the manner and extent of this risk is difficult to gauge. As with all criminal charges, prosecutors have discretion about which types of charges to pursue.
For instance, they may focus on abortion providers, rather than helping professionals who provide counseling and referrals for abortion care. In Texas, there is a “bounty law” permitting ordinary citizens to sue anyone who provides, aids, or abets an abortion after six weeks of pregnancy. “Aiding or abetting” might include providing a client with information, sharing a website, making a referral, giving a ride, arranging accommodations, or securing funding for a person seeking abortion. Under Texas’s law, each person who sues could receive a $10,000 “bounty” from anyone who provides, aids, or abets a prohibited form of abortion.
In states that prohibit abortions, social workers who help clients obtain abortions could also be subject to disciplinary actions by their employers as well as by their licensing bodies. Given the uncertainty about what types of conduct may put social workers at risk in different states, it would be helpful for state licensing bodies and state chapters of professional associations such as the NASW, American Psychological Association, and American Counseling Association, to develop and publish state-specific information and guidance for their members. For instance, could a social worker who provides post-abortion supportive counseling be subject to criminal charges?
In addition to the questions of how to help Alexa, an individual, consider your ethical and legal obligations regarding your knowledge of an abortion provider who is not qualified or competent to provide abortions. Yes, you have an ethical duty to maintain Alexa’s confidentiality. However, do you also have a duty to “do something” about someone who is providing unsafe abortions? This is a complex ethical dilemma. I cannot offer a definitive analysis or answer in this relatively brief article (or perhaps even in a longer article). You could check state regulatory laws to see if you have a legal duty to report someone who is engaging in unauthorized medical practice (including medical abortion care).
Looking at the issue from a consequentialist approach, you could consider the positive and negative effects of reporting the abortion provider: Would reporting lead to fewer unsafe abortions, or could it force people to seek abortions in even less safe situations? Would reporting encourage people to trust you as a social worker or would people be less likely to seek your help (particularly those with abortion concerns)? This is not the type of issue that you should resolve on your own. Consult with others in your community, including groups that have legal, mental health, and medical expertise in relation to pregnancy and abortion care.
2. Life Endangerment
Beatrix was raped by a stranger and is pregnant. She lives in a state that prohibits abortion and has no exception for rape. When you see her for counseling, she discloses that she is contemplating suicide. She says that physicians have refused to provide an abortion even though she believes her life is endangered (because of her emotional state and thoughts of suicide). You conduct a suicide assessment and conclude that she is at high risk for suicide.
This situation raises ethical issues in relation to protection of life and self-determination. Given the client’s risk of suicide, providing crisis intervention counseling and support should be a priority. One type of support that you should consider is advocacy. Although Beatrix has been denied abortion care, you could advocate with the physicians, helping them understand Beatrix’s level of risk and the urgency of the situation. If direct advocacy with the physicians is not successful, you could escalate the case by requesting that the hospital’s ethics committee review the situation and provide guidance. It may also be helpful to engage an attorney or advocacy organization to help with Beatrix’s situation. They may know of other medical facilities or of other appeals processes to help Beatrix. Given the time-sensitive nature of Beatrix’s concerns, it is important to act quickly. As with the previous situation and subject to similar cautions, you could also consider helping Beatrix access abortion care in another state.
When laws prohibiting abortions provide an exception for situations in which the pregnant person’s life is endangered, it is important to note how the term “life endangerment” is defined and interpreted. If the law refers to an “imminent situation” in which the person may die, then the risk must be life-threatening within a short period of time. There have already been situations in which pregnant patients have been denied abortions despite having life-threatening conditions because the situation was not currently a medical emergency (e.g., having hypertension, hemorrhaging, or infections that could lead to death, but not imminently). Physicians, social workers, and other health care providers may need to advocate for patients to have timely abortion care, rather than putting the patient through unnecessary pain, suffering, and risk of mortality.
3. Law Enforcement
Police come to your office with a search warrant, requesting records for one of your clients, Charlize. You have been providing counseling to Charlize, a client who obtained an abortion in your state. Your state currently prohibits abortions. You are a licensed clinical social worker and your licensing laws state that information received from clients in the course of your practice are privileged and confidential. You are not sure how to respond to the police.
Ordinarily, the criminal justice system should not seek records for confidential health or mental health records. In addition to state licensing laws, the Health Insurance Portability and Accountability Act (HIPAA) provides privacy protections for client records. HIPAA and state licensing laws do provide exceptions, for instance, if a client provides consent to release protected health information (PHI). Let’s assume that the client does not provide consent in this situation. As a clinical social worker, your ethical duty is to protect client confidentiality (s.1.07[c]). However, there may be legal obligations to consider. For instance, it could be ethical to release confidential information to protect the client or others from “serious, imminent harm.”
Again, let’s assume that this is not the situation in this case. Still, the police have a warrant and there could be legal consequences if you refuse to cooperate. Your first response to police could be, “I do not have authority to release client records to anyone. Our client records are confidential. I need to speak with our agency attorney [or a designated person in your agency] for assistance.” Courts may authorize warrants only if there is “probable cause” regarding illegal conduct. Your attorney can help by reviewing the warrant to ensure that it is an enforceable warrant and to determine what exactly needs to be shared with police.
This situation also raises ethical issues about record keeping. Ordinarily, social workers should maintain records of key issues raised by clients in the course of providing services. Some agencies and social workers, however, may consider not documenting information about abortion care if it is illegal in their state. They may want to protect their client’s privacy and avoid putting the client at risk should their records be obtained by law enforcement. If the abortion is not relevant to the purposes of services, then there may be no reason to document this information. If the abortion is relevant to the services being provided, then you face a dilemma. If you include information about the abortion, then there may be a risk that it is used in a criminal case. If you do not include the information, then you may be violating the NASW Code of Ethics by not providing “sufficient…documentation...to ensure continuity of services” (s.3.04). For this issue, you could consult literature on social work with survivors of rape.
To protect client privacy, some social workers in this field provide minimal information regarding topics that could end up in court (particularly if they might be used against the client’s interests). Rather than stating specifically that a client discussed having an abortion, for instance, the social worker could state that they discussed medical care. Although minimal records could provide some protection, it is not a perfect solution. If you are subpoenaed to testify in court, you could still be asked what you meant by “medical care” or whether the client spoke with you about obtaining an abortion.
4. Out-of-State Assistance
Dawn is a social worker in a state that does not restrict or prohibit access to abortions. She is thinking of using technology, such as interactive websites and videoconferencing, to offer information and support for people living in states that prohibit abortion so they may have access to abortion care. Dawn is uncertain about whether offering such services is ethical and legal.
Access to service is a core ethical principle (NASW Code of Ethics, 2021). Arguably, this principle supports offering cross-border services for people needing abortion care. Note that, for legal purposes, the location of social work services is generally determined by the physical location of the client, not the social worker. If Dawn is providing clinical social work services in a state that prohibits abortion, she needs to comply with the laws of that state. Accordingly, Dawn would need to be licensed. She would also need to know whether she could be subject to criminal or civil charges for “aiding or abetting” abortion. In response to the Dobbs decision, various groups have established websites, social media, and virtual clinics to help link people in other states with abortion services and support (e.g., https://www.heyjane.co).
President Biden has issued an executive order intended to support access to reproductive/abortion care, including support for patients traveling out of state. Once again, the laws (including this executive order) are still evolving and still to be tested in court. If you are thinking of offering information, support, or counseling services for patients in other states, ensure that you obtain legal advice about what types of actions may put you and your employer at risk of being charged or sued. You may also wish to work with organizations that advocate for reproductive freedom (e.g., https://www.aclu.org/other/links-other-reproductive-freedom-sites).
Conclusion
This article identifies a few of the many types of ethical issues that may arise in the aftermath of the Dobbs decision. For social workers, the NASW Code of Ethics continues to provide prudent guidance in terms of respecting clients, their rights to self-determination, informed consent, and privacy. When challenging ethical issues arise, seek help. Attorneys, medical professionals, abortion rights groups, your supervisor, social work colleagues, and others may be able to assist by providing helpful options, tangible support, advocacy, consultation, or advice.
In addition to adapting to the new legal situations regarding abortion, know that social workers can play vital roles in how abortion laws continue to evolve. Part 6 of the NASW Code of Ethics suggests that social workers have ethical duties to engage in political and social action, and to promote public engagement. As social workers, we can document problems arising from the new laws and work with legislators to consider further legal reforms (e.g., to remove prohibitions, expand exceptions, or enhance access to abortion care and related services). We can engage communities to register more people to vote and get out the vote in key elections. We can participate in criminal cases as amicus curiae (friends of the court), providing advocacy briefs and live testimony in abortion cases. We can educate and mobilize people to become more involved in voting and legislative processes. We can also engage our professional colleagues and allies in ongoing discussions about the best ways to address ethical issues that are arising in this post-Dobbs era.
We may not have all the answers. Still, ethics is often about having good questions and good discussions rather than having clear answers.
[1] With Alexa’s permission, you could ask about of her reasons for seeking an abortion and whether she has considered other options (e.g., adoption). The purpose of asking about Alexa’s reasons is not to question her motivation or persuade her not to have an abortion. By understanding Alexa’s concerns, you may be able to help her address them. If Alexa is concerned about her financial capacity to care for a child, you could discuss options for social assistance. If she is concerned about the medical risks of her pregnancy, you could help her access appropriate medical care. Empower Alexa by keeping the focus on her wishes and interests.
Allan Barsky, PhD, JD, MSW, is Professor of Social Work at Florida Atlantic University and author of Social Work Values and Ethics (Oxford University Press).
The views expressed in this article do not necessarily represent the views of any of the organizations to which the author is affiliated, or the views of The New Social Worker magazine or White Hat Communications.