Lizelle Herrera, at twenty-six years old, was arrested and charged with murder for allegedly performing a “self-induced abortion.” She was thrown into jail near the Texas-Mexico border with a $500,000 bail. After spending two nights in jail, she was released when the prosecutor dropped the charges because, in fact, no crime was committed. A health care provider was believed to be the one who reported her, and an overzealous prosecutor took it from there. In another state, Chelsea Becker was arrested immediately after a traumatic stillbirth for allegedly causing a miscarriage by consuming methamphetamine. Becker spent sixteen months in jail for this alleged crime, and during that time, lost custody of her youngest son. The charges were dismissed because of insufficient evidence that she knowingly consumed drugs to end her pregnancy. In fact, testimony from a pathologist evidenced that she had three previous infections that could have caused the stillbirth. Becker testified to California legislators in support of a bill prohibiting the prosecution of pregnancy terminations and stated: “If the hospital had never involved law enforcement due to this stillbirth happening, I would still have custody of my son.”
Herrera and Becker are two of the over 1,300 women that have been arrested or charged in the United States from 2006 to 2020 for actions allegedly aimed at harming their pregnancies. The number of women arrested in the last fourteen years is three times the number of women arrested for allegations of harming their pregnancies during the thirty-three years prior. Even more alarming is the reality that a great deal of those arrests and charges stemmed from information given to law enforcement by health care providers.
Situations like Herrera’s and Becker’s will inevitably become more common after the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, allowing states to create even more laws to prosecute pregnant people. If health care providers disclosed private health information when there was an established constitutional right to abortion, private information is even more likely to be disclosed post-Dobbs. Some health care providers may report patients to law enforcement because of their personal opinions on abortion, while other providers may report simply because of confusion and fear around the law. Many health care providers think that it is mandatory to make such disclosures, especially when requested by law enforcement. But in reality, practitioners have legal and ethical obligations to protect patient privacy. Even recent abortion laws, like Texas’s Senate Bills 4 and 8 that exempt a pregnant person from criminal consequences, are still likely to result in arrests like Herrera’s because of the “aura of illegality” they give off. Therefore, it is imperative to make clear guidelines that health care providers can use when determining whether disclosure of patient information is required. However, even for those physicians who know the law, hospitals have their own policies for risk management that may require disclosure to avoid lawsuits, making other protections necessary. Had a health care provider protected their information, Herrera’s and Becker’s arrests could have been avoided.
This Note examines the Supreme Court’s recent Dobbs decision to overrule Roe v. Wade’s long-standing constitutional right to abortion and give the power to regulate abortion to the states. More specifically, this Note discusses the negative implications the Dobbs decision will have on private health information relating to abortions and other reproductive health care and offers suggestions to better protect the patient-physician relationship from intrusion.
Part II of this Note provides a brief summary of the Supreme Court decisions of Roe and Casey, which granted a constitutional right to abortion under the implied right to privacy, and then discusses the Dobbs decision to overrule them, which subsequently changed state laws. Part III explains the current federal privacy protections in place, including the constitutional right to privacy, the Health Insurance Portability & Accountability Act (HIPAA), and the physicians’ Code of Medical Ethics. Finally, Part IV suggests developments to current privacy protections as possible solutions to this new privacy issue. This Note demonstrates the importance of a constitutionally protected right to abortion and emphasizes the existing laws that prevent providers from breaching patient privacy protections.