This week, the story of a 10-year-old rape victim in Ohio became national news when it was revealed that the child had to go to Indiana for an abortion. In the wake of Roe v. Wade falling, Ohio had triggered a broad ban on any and all abortions after six weeks of pregnancy, with no exceptions. And at the heart of the controversy was the Indiana doctor who performed the abortion, and whether or not she upheld her duty as a “mandated reporter.”
A mandated reporter is anyone who works closely with vulnerable populations (including children, disabled people and the elderly) and has a responsibility to officially report any signs of abuse or neglect. It’s a responsibility that affects people who work in health care, law enforcement, counseling and social work agencies, among other industries; these initial reports can lead to extensive investigations by the state, with criminal and financial penalties for abusers.
In the case of Dr. Caitlin Bernard, some claimed that the Indiana OB-GYN had failed to report the abuse and terminated pregnancy of her 10-year-old patient, in some attempt to “hide” the procedure from the law. Various right-wing media and political figures, including Fox News host Jesse Watters, Glenn Greenwald and Christina Pushaw, spread wild conspiracies about the veracity of Bernard’s story.
Reporting from the far-right disinformation site known as PJMedia claimed Bernard had a history of failing to report child abuse; Indiana Attorney General Todd Roika even appeared on Watters’ show, proclaiming that Bernard was “an abortion activist acting as a doctor” and announcing his office would investigate her.
Seemingly, all of it was just far-right smoke and mirrors: A report from FOX59 in Indiana confirmed Bernard had followed protocols. But the outrage around the tale does bring a different question to light: Is an abortion — whether unlawful, done across state lines or self-managed — something that a mandatory reporter ever needs to snitch on?
According to Lauren Paulk, senior research counsel for reproductive justice organization If/When/How, the answer is clear. “A mandatory reporter in a state where abortion is banned isn’t required to report, one, a patient who obtained a legal abortion in another state; or two, a patient seeking abortion care in that state. Doing so would likely be a HIPAA violation,” she says.
And per current research, Paulk observes that there is no law in any state that specifically requires reporting the fact of a self-managed abortion to law enforcement, either. But she also adds that they have seen “confusion” from health-care providers around this question, and affirms that moral and political agendas can influence the decision to report.
“Some health-care providers may deliberately report self-managed abortion because they believe it to be wrong. However, [the Department of Health and Human Services] recently made clear that absent a specific law requiring a report, a health-care provider reporting a self-managed abortion would be in violation of HIPAA,” she says, referencing the federal law to protect patient privacy.
The crux here is “absent a specific law requiring a report,” which implies that it’s possible for a state to write a policy to include any suspected “unlawful” abortions under mandated reporting laws. But even absent such an explicit rule, there are dozens and dozens of examples of people who have been criminally investigated or arrested for allegedly self-managing an abortion, or helping someone else do so.
“We’re aware of at least 61 cases across 26 states from the years 2000 to 2020 where people have been criminally investigated or arrested for allegedly self-managing an abortion or helping someone else do so,” writes Laura Huss, senior researcher for If/When/How, in an upcoming report. “Among this full sample, individuals were most often reported to law enforcement by a medical professional; 21 cases were brought to the attention of law enforcement by health-care providers.”
It’s little wonder that the issue has become a hot topic for social workers, doctors and other mandatory reporters, with some making bold proclamations that they’ll resist through civil disobedience. One person on TikTok, who claimed to be a social worker, had fighting words to share. “It doesn’t matter if it’s the law. Your entire licensing and education has been predicated on the fact that you were to do no harm, and you are to protect and serve your clients. If you’re worried about subpoenas, let me give you a little tip: If it didn’t get into the notes, it didn’t happen,” he declared.
Some experts have pointed out that such tough talk may not be necessary at all, given the existing legal framework doesn’t force the reporting of abortion under the auspices of child abuse. But as Paulk observes, reporting from health-care providers is still a leading cause of the criminalization of pregnant people who self-manage an abortion. The act can put a pregnant person in jail or prison, with further loss of parental rights, loss of employment and other harms.
It’s hard to ignore the potential for anti-abortion advocates, or mandatory reporters who personally oppose abortion, to abuse this system in a post-Roe landscape. Paulk emphasizes that divulging private health information that isn’t clinically necessary to client care is a massive HIPAA red flag, but also acknowledges that “clinically necessary” is a broad and variable limitation.
“It’s fundamentally unfair that the government deputizes health-care providers to surveil and police their patients in this way, and we believe that the confidentiality violations that mandatory reporting laws encourage deeply harm the patient-provider relationship, and do and will result in pregnant people avoiding health care or otherwise not disclosing important details to providers,” she says.
Such is the nature of ending the federally protected right to abortion: As laws splinter into 50 jagged shards, pregnant people are forced to contend with the unpredictability of it all, wondering who they should trust in a world full of anti-abortion surveillance, violent protests and mounting oppression via restrictive legislation.
The vast majority of mandatory reporters will likely choose to stay out of a client’s choice — but the others who want to snitch on abortion are feeling more empowered than ever before.
Eddie Kim
Eddie Kim is a features writer based in Los Angeles, covering social and cultural issues for MEL.
