Abortion Law Blog Essay

Fifth Amendment Rights as Abortion Rights

A Black woman arrives at a hospital in South Carolina with a medical emergency. She is having labor pains, and the medical staff ask her what’s wrong. She tells them she took abortion pills. Months later, a warrant is issued. She is arrested and charged with “performing or soliciting an abortion.”

The woman isn’t the first to be prosecuted after sharing information with a medical provider in connection with pregnancy care, but the case highlights the precarity women face when seeking care in states with increasingly restrictive abortion laws. Professor Dorothy Roberts has highlighted how, especially for poor and Black women, medical services have long been an entryway into the criminal legal system. As legislators in South Carolina and across the country consider abortion bans and ramp up penalties for conduct related to pregnancy, this case foreshadows what may lie ahead.

In Fourth Amendment Rights As Abortion Rights, Professor Elizabeth Joh illuminates the challenges courts will face applying criminal procedure to the once constitutionally-protected right of abortion. This analysis should extend to the Fifth Amendment as well. While women may assume — incorrectly — that statements they make for the purpose of medical care will not be reported to law enforcement, scholars have shown that medical care and policing are deeply intertwined. In a post-Roe world, hospitals will become sites of self-incrimination for pregnant people who choose to end their pregnancies or miscarry, and the Fifth Amendment will fail to protect the zone of privacy and autonomy necessary for meaningful access to medical care.

  1. The Crime of Self-Managed Abortion

Across the United States, state legislatures are floating a raft of potential abortion restrictions that criminalize abortion as feticide, child abuse or neglect, and homicide. Some states have even proposed applying the death penalty to abortion. Yet even before Dobbs v. Jackson Women’s Health Organization overturned the constitutional right to abortion as outlined in Roe v. Wade and Planned Parenthood v. Casey, prosecutors across the country brought charges against women for self-managing abortions.

Self-managed abortion is when a pregnant person attempts to end a pregnancy on their own, outside a clinic or doctor’s office. Studies show that pregnant people seek self-care options because of barriers to clinic-based care including cost and distance, believing self-induction is easier or more natural, and lack of access to information about how to access abortion care, especially for younger patients. These reasons suggest that self-managed abortions are likely to become more frequent as states implement restrictive abortion laws and access to clinic-based care becomes more difficult, especially for poor, minoritized, and young patients. Self-managed abortion with pills remains very safe, though dueling decisions, one preventing changes to the applicable restrictions on mifepristone and the other staying the Food and Drug Administration’s twenty-three year old approval of the drug, complicate its continued availability.

Three states — Oklahoma, Nevada, and South Carolina — explicitly criminalize self-managed abortions. South Carolina’s law makes it a felony to assist a self-managed abortion, including by providing drugs, and a misdemeanor to self-manage one’s own abortion. The law also compels a woman to testify against anyone who helped her self-manage an abortion, though that testimony cannot subsequently be used against her in her own prosecution.

A study from If/When/How, an abortion rights organization, documented 61 cases of prosecution for self-managed abortions. Of those, 89% involved adults and 11% involved minors. While 26% of the adults were criminalized for assisting someone with their self-managed abortion, 74% of adult cases involved their own self-managed abortion. Prosecution was not confined to states where self-managed abortion is illegal. Twenty-six states prosecuted at least one person. Most frequently, the cases were reported to law enforcement by mandatory reporters: either healthcare providers or social workers.

  1. Self-Care and Self-Incrimination

Law enforcement investigations of abortions and miscarriages often begin with the pregnant person’s own statements not to police, but to medical providers who contact law enforcement and report on their patients. When medical providers take on these law enforcement roles, individuals seeking pregnancy-related medical care are likely to unwittingly incriminate themselves, exposing themselves to criminal prosecution and other collateral consequences.

In Policing the Womb,Professor Michele Goodwin describes the wide range of laws that criminalize behavior during pregnancy, including fetal protection and drug laws and maternal conduct laws. Those laws, along with laws explicitly criminalizing self-managed abortions, have been used to punish women who take steps to end their pregnancies outside of medical settings. One example is that of Purvi Patel, who was sentenced to twenty years in prison for feticide after prosecutors in Indiana said she attempted to induce her own abortion. Her case, too, began with a statement to medical providers that she had had a miscarriage and that she had left the fetal remains in a dumpster. Like most people seeking medical care, Patel likely assumed her communications with her doctors were confidential. Yet protections related to criminal investigations are rarely applied to medical settings, and mandatory reporting statutes can pervert the expected sanctity of doctor-patient confidentiality.

Take the most common mechanism for excluding self-incriminating statements from trial: a violation of Miranda rights. In Miranda v. Arizona, the Supreme Court held that before a custodial interrogation, a person must “be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.”

The application of this right to statements made to medical providers runs into a number of roadblocks. First, for Miranda to apply, the questioner must be a state actor. In the context of state hospitals, the Court has held that public hospital staff are government actors, but it may be more difficult to convince a court that private hospital employees qualify as state actors for purposes of Miranda analysis. This formal distinction should not be insurmountable in future litigation. When private hospital staff through routine and regularized mechanisms provide patients’ statements to law enforcement for prosecution, those staff members should be understood to be working as an arm of law enforcement.

Common conceptions of doctors as care providers rather than law enforcers may also affect Miranda’s applicability. Since Miranda rights must only be read when a person is subject to “custodial interrogation,” two legal questions arise: whether a reasonable patient would feel free to leave the hospital because of the doctor’s authority (custody), and whether the doctor knew or should have known that her questioning was reasonably likely to elicit an incriminating response (interrogation). While a patient may well be unable to leave in a practical sense — or without signing a refusal of treatment form — courts are unlikely to find the restraints associated with treatment sufficiently coercive or restrictive to establish custody absent police presence. In some instances, though, coercive medical treatment of pregnant patients belies the voluntariness of their hospital stays; Goodwin’s work has documented bed rest under threat of arrest and forced cesarean sections. Courts should consider this context carefully before rejecting the hospital as place of confinement, even when police are not the questioners preventing a person from feeling free to leave.

Besides Miranda rights, a pregnant person might also invoke the Fifth Amendment’s protections against the use of involuntary statements at trial. Voluntariness requirements seem particularly suited to emergency pregnancy care, where a person may be under sedation, in a great deal of pain, or under the influence of legal but incapacitating substances such as painkillers. In Mincey v. Arizona, the Court held that incriminating statements obtained through hospital interrogation by a police officer could not be used even for impeachment purposes because they were not the product of the patient’s “free and rational choice.” A similar analysis should apply to questioning by medical providers: a person in need of life-saving medical care cannot make a “free and rational choice” about whether to make incriminating statements related to that care, especially if they believe necessary care may be withheld without their cooperation.

Pregnant patients’ rights against self-incrimination stand in tension with providers’ law enforcement role not only because providers sometimes decide to betray their patients’ trust of their own accord, but also because mandatory reporting laws often compel them to do so. After the publication of The Battered-Child Syndrome in 1962, states moved quickly to adopt laws that would require doctors to report suspected child abuse to law enforcement. These same laws have been used to require reporting of self-managed abortions in states whose child abuse statutes protect fetuses. While mandatory reporting laws were conceived as mechanisms of aiding abused child patients, they are now applied in the abortion context, turning the patient into a suspect.

Doctors themselves have recognized how mandatory reporting laws can obstruct access to medical care. In Cops in Scrubs, Professor Ji Seon Song recounts physicians’ concerns that a New York requirement for doctors to report gunshot wounds might cause patients to postpone treatment or seek treatment in jurisdictions without such requirements. With respect to pregnancy care, patients may also avoid treatment for miscarriage management, as patients fear their pregnancy loss may be interpreted as a crime and reported by their doctors. These dangers are especially acute for patients who are poor, Black, or both. Individuals criminalized for self-managed abortions are disproportionately likely to be Black, reflecting patterns of racial bias in law enforcement and healthcare.

  1. The Post-Roe Fifth Amendment

As states tighten abortion restrictions, prosecutions of self-managed abortions seem likely to increase. In many of these cases, the investigation will begin at a doctor’s office or hospital with the patient’s own statements, which will then be used to prove the case against them. Fifth Amendment protections, too easily overcome by claims of exigency, state interest, and a facile conception of voluntariness, are unlikely to prevent states from collecting confessions and impeachment evidence through medical providers. Instead, patients seeking care after self-managed abortions will now be subject to the extensive regime of healthcare policing and hospital surveillance. In this environment, doctors committed to providing reproductive care to pregnant patients must renew discussions about their reporting obligations and pregnant patients should be informed well in advance of any emergency that some questions could subject their private medical information to disclosure to law enforcement.