Abortion and the Psychiatrist: Practicing in Post-Dobbs America

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In Dobbs v Jackson Women’s Health Organization, the US Supreme Court held that there is no constitutional right to abortion, overruling Roe v Wade and nearly 5 decades of precedent. The Dobbs decision allows states to regulate abortion, resulting in a patchwork of laws that vary considerably by jurisdiction, from outright bans on abortion to very early gestational limits.¹ For an up-to-date summary of state laws, we refer the interested reader to the Guttmacher Institute state legislation tracker.²

Changes to abortion law will affect both patients and providers. Although obstetrician- gynecologists face direct liability in a variety of scenarios following Dobbs, other medical providers, such as psychiatrists, face less obvious challenges. In this article, we explore some abortion-related dilemmas confronting psychiatrists and provide guidance on how we might approach the many complex clinical, ethical, and legal issues that may arise.

Abortion and Mental Health: Know the Data

Historically, research regarding abortion and mental health has been so problematically designed that the American Psychological Association issued a statement calling for caution when interpreting study data about abortion and mental health.^3,4 Study design problems include not controlling for confounding effects, such as pre-abortion mental illness, and inappropriate use of control groups—for example, comparing women who obtain an abortion with women who have never been pregnant or women who are having a wanted pregnancy.

Women who wish to have an abortion have many distinct characteristics, such as the fact that three-fourths are poor or have low income, so it is crucial to find an appropriate comparison group to study the mental health outcomes of an abortion.⁵

The Turnaway Study is a multicenter, prospective landmark study that tracked approximately 1000 women who were able to obtain, versus not obtain, a desired abortion and evaluated the relationship between abortion and various health outcomes, including mental health.^6,7 Thus, the Turnaway study compared appropriate groups. The ultimate finding was that having an abortion did not worsen mental health.

However, women who were unable to obtain a desired abortion experienced a short-term increase in anxiety and a decrease in self-esteem and life satisfaction compared with women who were able to obtain an abortion.⁶ After 2 years, women who obtained an abortion had similar or lower levels of depression and anxiety compared with women who were not able to obtain a desired abortion.⁶ The most significant predictor of negative postabortion mental health is pre-abortion mental health and history of traumatic life experiences.⁶

Knowing about the Turnaway Study data and their discordance with those of other, poorly conceptualized literature is important for several reasons. First, patients may discuss reproductive planning with their psychiatrist. Second, patients may receive misinformation about the psychological effects of an abortion. In some jurisdictions, women receive misleading information regarding the potential physical or emotional sequelae of abortion.

Such information stems from statutes mandating that women be provided with often medically inaccurate state-scripted “informed consent” materials during pre-abortion counseling.^8,9 Other “informed consent” requirements may mandate that women visualize the fetus or listen to the fetal heartbeat before obtaining an abortion, which may cause psychological distress.

In any of these scenarios, psychiatrists should have an adequate understanding of the existing literature in order to counsel patients regarding the risks of psychological effects following an abortion or from being unable to obtain an abortion.¹⁰ Psychiatrists should also discuss reproductive planning with patients of reproductive age, from menarche to menopause. This is important for several reasons.

First, the psychiatrist should be aware if the woman is planning or trying to become pregnant in the near future, which would influence the choice of psychotropic medication. Psychiatrists should consider the use of medications that are relatively safe in pregnancy and discuss the risks of medications in pregnancy with their patients proactively.¹¹

Second, if the woman does not desire pregnancy, the psychiatrist should explore what methods she is using to prevent pregnancy. Emergency contraception (such as Plan B) can be prescribed by any physician, including psychiatrists. Advance prescribing does not encourage risky sexual behavior, but rather allows a woman to protect herself should she have a barrier- method contraception failure.¹² We refer the interested reader to Makino et al (2022) regarding dosing of emergency contraception.

Abortion and Informed Consent: Be Aware of Bias

Psychiatrists may be consulted to conduct a medical decision-making capacity assessment when there is uncertainty about a woman’s ability to consent to an abortion. Typically, these cases arise when the woman is experiencing serious psychiatric illness, has an intellectual developmental disability, and/or is under legal guardianship.

Rooted in the principle of autonomy, informed consent is both an ethical and a legal requirement. Informed consent involves 3 components: adequate information, voluntariness, and capacity.¹³ A clinician must provide the patient with relevant, accurate information, and the patient must be able to make the decision without coercion or undue influence. Finally, a patient must have decision-making capacity.

The informed consent process surrounding abortion may be more complicated than decision- making in other areas of health care due to a variety of factors, including time restrictions, religious convictions, stigma, political controversies, conflicting views and strong emotions among patients, stakeholders and providers, and legislative interference.^8,14

Evaluations of capacity to consent to abortion should follow the same approach as other medical decision-making capacity assessments, with some unique considerations.

First, as previously noted, legislative interference with pre-abortion counseling and a history of flawed research has led to commonly held misconceptions that having an abortion leads to depression, anxiety, or suicide, despite findings from more sound studies showing that abortion does not confer such risk.^3,9

In addition, given that women with mental disorders may be vulnerable to undue influence, psychiatrists should ascertain that the choice to terminate a pregnancy is being made voluntarily and free of coercion.^8,13 Finally, the topic of abortion can be divisive and elicit powerful emotions. Psychiatrists should be mindful of their own opinions and biases and avoid any effort to influence a woman’s decision.⁸

An Ethical Dilemma: Life of the Mother Exceptions

Psychiatry had a critical involvement in abortion before Roe v Wade in 1973. Prior to that time, most states allowed abortion if a woman’s health or life was threatened. Although the “life of the mother” exception was typically invoked in cases of physical health, certifications of the need for abortion for psychiatric reasons became more common over time. Typically, psychiatrists certified that a woman would be imminently suicidal if she could not have an abortion. Before Roe, maternal mental health was one of the most common indications for an abortion; some labeled psychiatrists as gatekeepers of abortion.¹⁵

Often, the practice of psychiatric certification was limited to women of means with access to a psychiatrist who philosophically agreed to such a certification. Although some psychiatrists certified all cases they saw, others did not wish to become involved. Ethically, psychiatrists faced challenges including ascertaining the veracity of the woman’s suicidal statements and, if she was suicidal, how likely this was to place her health or life at risk.¹⁵ It is yet to be seen how the “life of the mother” exception might interface with psychiatry in post-Dobbs America.

Other Legal Dilemmas: Knowing the Law

Abortion statutes now vary considerably between states and continue to change. Psychiatrists should be aware of the law in their jurisdiction for several reasons. First, patients and providers may be criminally prosecuted. Second, states may expand or pass laws requiring medical providers to report pregnant women in various circumstances. Knowledge of these laws allows both parties to mitigate risk in a host of scenarios, which we will next discuss.

In several states, abortions are now criminalized; this commonly results in penalties for the abortion provider, but it may also include prosecution of the patient. Even prior to Dobbs, pregnant women could be prosecuted for fetal loss or harm under various laws, including chemical endangerment and fetal homicide laws. Examples include prosecution of women who, while pregnant, used substances, attempted suicide, or self-induced an abortion.^16,17

At least 1700 women have been prosecuted under these laws since Roe.¹⁷ Thus, even in states where abortion remains legal, we could see continued or expanded prosecution under these laws, with a disproportionate impact on minority and economically disadvantaged women.¹⁸

Providers or others who assist the patient in obtaining an illegal abortion could also be prosecuted for aiding and abetting a criminal act.¹⁹ It is not clear how “assistance” might be interpreted, but it may include helping a patient obtain medication for an abortion or travel for an abortion.

The evolution of fetal personhood laws could also result in increased prosecution of pregnant women and present unique ethical dilemmas for psychiatrists. These laws could also impact contraceptive access and fertility treatment. The Roe court explicitly stated that the fetus was not a person under the US Constitution. The Dobbs court, however, did not address this matter. Dobbs did not explicitly forbid states from granting the fetus legal personhood.

At the time of writing this article, 8 states have introduced fetal personhood laws.² These laws vary in terms of when in gestation personhood is established. Under fetal personhood laws, any harm that befalls the fetus could be prosecutable under laws prohibiting negligent or criminal acts against a person.¹⁹ Potential examples include a pregnant woman who fails to use a seatbelt and miscarries following a car accident, a woman who fails to take prescribed medication to control her blood pressure and must deliver prematurely, and a host of other scenarios.

For providers in states with fetal personhood laws, this could mean that common law or statutory duties to protect may extend to the fetus. For example, if a psychiatrist learns that a patient intends to obtain an illegal abortion or to otherwise engage in acts likely to result in fetal harm, the psychiatrist may be obligated to protect the fetus or warn authorities of the patient’s intent.

Scenarios could include a patient who is in an abusive relationship, has an eating disorder, or is suicidal. These examples are not far-fetched, because even prior to Dobbs, many states required providers to report prenatal substance use, and several states allowed for the civil commitment of a pregnant woman if the fetus was presumed to be in danger.¹⁸

Finally, psychiatrists may be mandated reporters of negative psychological effects of abortion outcomes. An Indiana law requires clinicians to report adverse outcomes of abortions including depression or suicidality, although the law is questionably unconstitutional, in part because it does not adequately link or define how a provider is to determine causality between an abortion and a particular medical outcome.²⁰

In all these scenarios, the psychiatrist should first be aware of the law in their jurisdiction to better understand the potential criminal and civil risks to them and their patients. Mandated reporting requirements may present complex ethical challenges, and consultation with risk management services or your malpractice carrier may be indicated.

If the patient is being investigated, records of their psychiatric and medical treatment may be subpoenaed. Accordingly, clinicians should use good clinical judgment when documenting sensitive matters and routinely inform patients about the limits of confidentiality and privilege at the outset of treatment.

Concluding Thoughts

The Dobbs decision is likely to affect pregnant women with psychiatric illness and psychiatrists in numerous ways. Psychiatrists who treat any women of childbearing age should know the data on abortion, be proactive about patients’ contraception and pregnancy, and know how laws regarding abortion may impact their patients’ mental health and access to health care. In addition, abortion laws are rapidly changing by state, and psychiatrists should be aware of laws in their jurisdiction to mitigate ethical and legal risks that may arise.

Dr Landess is an adjunct clinical assistant professor and training director of the Forensic Psychiatry Fellowship at the Medical College of Wisconsin in Milwaukee. Dr Hatters-Friedman is the Phillip J. Resnick Professor of Forensic Psychiatry; a professor of psychiatry, reproductive biology, and pediatrics; and an adjunct professor of law at Case Western Reserve University in Cleveland, Ohio. Dr Kaempf is a clinical associate professor in the Department of Psychiatry at the University of Arizona Medical Center in Tucson. Dr Ross is an assistant professor of psychiatry at University Hospitals/Case Western Reserve University in Cleveland, Ohio.

References

1. Tracking the states where abortion is now banned. The New York Times. October 13, 2022. Accessed November 9, 2022. https://www.nytimes.com/interactive/2022/us/abortion-laws-roe-v-wade.html

2. State legislation tracker. Guttmacher Institute. Accessed November 8, 2022. https://www.guttmacher.org/state-policy

3. Major B, Appelbaum M, Beckman L, et al. Abortion and mental health: evaluating the evidence. Am Psychol. 2009;64(9):863-890.

4. APA Task Force on Mental Health and Abortion. Report of the APA Task Force on Mental Health and Abortion. American Psychological Association; 2008. Accessed November 9, 2022. http://www.apa.org/pi/wpo/mental-health-abortion-report.pdf

5. Jerman J, Jones RK, Onda T. Characteristics of U.S. abortion patients in 2014 and changes since 2008. Guttmacher Institute. 2016. Accessed November 9, 2022. https://www.guttmacher.org/sites/default/files/report_pdf/characteristics-us-abortion-patients-2014.pdf

6. Biggs MA, Upadhyay UD, McCulloch CE, Foster DG. Women’s mental health and well-being 5 years after receiving or being denied an abortion: a prospective, longitudinal cohort study. JAMA Psychiatry. 2017;74(2):169-178. Published correction appears in JAMA Psychiatry. 2017;74(3):303.

7. The Turnaway Study. University of California San Francisco. Accessed November 3, 2022. https://www.ansirh.org/research/ongoing/turnaway-study

8. Informed consent and shared decision making in obstetrics and gynecology: ACOG Committee opinion, number 819. Obstet Gynecol. 2021;137(2):e34-e41.

9. Daniels CR, Ferguson J, Howard G, Roberti A. Informed or misinformed consent? abortion policy in the United States. J Health Polit Policy Law. 2016;41(2):181-209.

10. Ross N, Landess J, Kaempf A, Friedman SH. Pregnancy termination: what psychiatrists need to know. Curr Psychol. 2022;21(8):8-9.

11. Friedman SH, Hall RCW. Avoiding malpractice while treating depression in pregnant women. Curr Psychol. 2021;20(8):30-36.

12. Makino KK, Friedman SH, Amin J, Zhao L. Emergency contraception for psychiatric patients. Curr Psychol. 2022;21(11):34-39,44-45.

13. Code of medical ethics: informed consent. American Medical Association. Accessed November 4, 2022. https://www.ama-assn.org/delivering-care/ethics/informed-consent

14. Ross NE, Webster TG, Tastenhoye CA, et al. Reproductive decision-making capacity in women with psychiatric illness: a systematic review. J Acad Consult Liaison Psychiatry. 2022;63(1):61-70.

15. Friedman SH, Landess J, Ross N, Kaempf A. Evolving abortion law and forensic psychiatry. J Am Acad Psychiatry Law. 2022; in press.

16. Angelotta C, Appelbaum PS. Criminal charges for child harm from substance use in pregnancy. J Am Acad Psychiatry Law. 2017;45(2):193-203.

17. Arrests and prosecutions of pregnant women, 1973-2020. Pregnancy Justice. 2021. Accessed November 8, 2022. https://www.nationaladvocatesforpregnantwomen.org/arrests-and-prosecutions-of-pregnant-women-1973-2020/

18. Hui K, Angelotta C, Fisher CE. Criminalizing substance use in pregnancy: misplaced priorities. Addiction. 2017;112(7):1123-1125.

19. Abortion in America: How Legislative Overreach Is Turning Reproductive Rights Into Criminal Wrongs. National Association of Criminal Defense Lawyers; 2021. Accessed November 8, 2022. https://www.nacdl.org/getattachment/ce0899a0-3588-42d0-b351-23b9790f3bb8/abortion-in-america-how-legislative-overreach-is-turning-reproductive-rights-into-criminal-wrongs.pdf

20. IN Code §16-34-2-4.7. (2019).