Loopholes in medical privacy laws — often justified by drug enforcement — mean that hospitals have discretion to share records without patient consent. Only 19 states ban warrantless searches of prescription drug monitoring databases, and at the federal level, the Drug Enforcement Administration claims that it should be able to search these databases without a warrant in any state. Almost half of the states define drug use during pregnancy as child abuse, which triggers mandatory reporting to child welfare agencies and can also result in criminal charges. It’s not too difficult to see how similar data could be used to target women seeking abortions or doctors helping with their care.
Terrified of legal action, some physicians are already taking extreme measures to protect themselves from abortion prosecutions, such as ending women’s prescriptions for an immune disorder treatment, methotrexate, because if they get pregnant, it can cause miscarriage. The Texas Medical Association recently asked state regulators to act, saying that several hospitals are turning away patients with pregnancy complications for fear of violating the state’s abortion ban. Women who are miscarrying have been left to wait until they have severe bleeding before help is offered. As with the drug war, legal fear is driving doctors to prioritize themselves over their patients’ health.
The Supreme Court, however, offers one glimmer of hope in the fight against escalating medical criminalization. In a little-noticed 9-to-0 decision, Ruan v. United States, released just days after Roe was overturned, it decided to draw a line in the war on drugs. Some circuit courts had ruled that doctors accused of running “pill mills” could be convicted simply for prescribing more than prosecutors found acceptable. Others, in contrast, had ruled that drug dealing requires criminal intent and that doctors must have the right to defend themselves as practicing in good faith.
The Supreme Court sided with physicians. Prescribing outside the mainstream still risks malpractice suits, but without signs of criminal intent like selling specific drugs for specific dollar amounts, doctors can’t be convicted as dealers, the court ruled. It’s unclear why this intent requirement would not pertain to abortion cases as well.
But it is already obvious that prosecuting physicians hasn’t ended the overdose crisis. Instead, it scared many into defensive medicine and drove people with addiction and even some pain patients to far more deadly street drugs. Last year, the United States had its highest rate of overdose death, with the majority lost to opioids.
As with the drug war, criminalizing abortion will increase harm while failing to stop the behavior it is intended to reduce.