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By Protecting Our Patients, Are We Putting Ourselves at Risk?

Therapists are used to asking hard questions.

But in the wake of Roe v. Wade, we are struggling to answer them.

Picture this…Abby experiences a rape in Alabama at the end of 2022, which results in a pregnancy that she decides to terminate. After much anxiety, she finds a practice that is still secretly performing terminations in her state and makes an appointment. One year later, Abby moves to Maryland and restarts her life. She thinks that she has healed and recovered from the rape, but she is starting to notice some pretty significant anxiety any time she leaves her new home. She makes an appointment with a psychologist to start working on her anxiety. During the intake, she discloses that she terminated a pregnancy in AL in October 2022.

Where does this information go? What are the implications for detailing an illegal termination in the patient’s medical chart? If we don’t document it, how does another provider know that the rape and termination are major parts of her history that still need to be explored?

It’s been just over five months since the Supreme Court announced its decision to overturn Roe v. Wade, leaving it in the hands of each state. In that time, 13 states have banned most abortions, and about half of U.S. states are expected to enact bans on terminations or place other gestational limits on the procedure.*

Professionals in the mental health community are already coping with the implications of these decisions, and we are bracing for even more serious fallout. As healthcare providers, we have an ethical duty to protect our patients’ confidentiality and privacy, while taking thorough histories during intakes and keeping notes from each session. However, with the recent changes to the law, every piece of data we document and how we choose to document it could have repercussions for us, our patients, and anyone else mentioned in the medical chart should it ever be subpoenaed.

In my own practice, the Supreme Court’s decision has forced my team to grapple with many questions we are still struggling to answer – first and foremost, when completing patient intakes, should we continue to ask about terminations?

Unlike many of our colleagues, my team is fortunate to practice in Maryland, where a woman’s right to terminate a pregnancy is still currently protected. But with laws in other states rapidly changing, we are still carefully considering the potential future consequences of including a mention of a termination in a patient’s chart. As professionals, the last thing we ever want to do is put a patient, ourselves, or a colleague at risk of emotional or legal harm.

And, if you are thinking, “Just take out the question in your intake,” it’s just not that simple.

The vast majority of my work in this field has been in trauma, more specifically rape trauma in women. Nothing compounds the trauma of rape more than a pregnancy. As if struggling with the after effects of rape isn’t enough, a woman can experience a retraumatization as she questions how to proceed with an unexpected pregnancy.

It’s my job to help others heal from trauma. How do we start the healing process if a patient is scared to disclose their history of terminations? How can I create an effective treatment plan if I don’t know all of the events, decisions, and experiences that are impacting my patient’s mental wellness?

Taking questions about terminations out of our intake forms would leave me lacking the information that I need to do my job well. And, if you know me, you know that my work in psychology is exceptionally important to me. Sitting with women as they grapple with and heal from a crime that has changed nearly every aspect of their lives is something I take very seriously. It’s so easy to suggest that we just remove the question from our forms, but…

When’s the last time you sat across from a woman who was pregnant with her brother’s child as a result of a rape?

When’s the last time you had an in-depth conversation with a woman who was pregnant as a result of contraception being compromised or tampered with?

All past trauma is relevant to a mental health provider who is trying to understand a patient’s thoughts, feelings, and behaviors, and leaving out an event as potentially significant as a termination could hinder their treatment progress. So, the clinical risks of not asking the question may outweigh the legal risks of asking it…or do they?

In June 2022, Alabama enacted a full abortion ban with no exceptions for rape or incest. The only exception is if the mother’s life is in danger. And, any physician who performs a termination is committing a Class A felony, which comes with a sentence of life in prison if convicted. In other words, documenting Abby’s termination in her medical chart could result in legal problems for her physician if the chart is ever subpoenaed for any reason, even if those reasons are unrelated to the termination.

In our brainstorming sessions on this issue, my team has also suggested asking about abortions verbally, but not recording the patients’ answers or documenting the information in some vague way without too much detail.

But this doesn’t fully solve the problem either, because taking nuanced notes is an important part of our process. There are many reasons why a patient may need to see more than one therapist over the course of their treatment. Maybe their regular therapist is out sick, away on vacation, or on maternity leave. Maybe the patient required an emergency session and their regular therapist wasn’t available. Whatever the reason, it benefits both the provider and the patient to keep a thorough record of the personal information shared in past sessions. Without it, we do our patients and our colleagues a disservice.

So where does that leave us? For now, my team has opted not to change our intake process while we continue to research and discuss this issue. But this is only the tip of the iceberg compared to the challenges our counterparts are facing in states where pregnancy termination is now banned.

Unfortunately, the Supreme Court has placed mental health professionals across the country in a Batman-like quandary. Batman’s life theme was walking the fine line between protecting his city and his identity and, like Batman, we are caught between protecting our patients’ confidentiality and treatment while protecting ourselves and our colleagues from legal jeopardy.

It’s true…not all heroes wear capes.


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