Since the U.S. Supreme Court issued its decision to overturn Roe v. Wade, many states have proposed, enacted, or resurrected a range of laws to either prohibit, significantly restrict, or protect reproductive rights and health care. Currently, the main targets of these laws appear to be medical providers who provide abortions or individuals seeking to obtain an abortion.

APA and APA Services Inc. are striving to provide psychologists with accurate and adequate information regarding the changing landscape of reproductive health care laws. Psychologists have embraced telehealth and many use technology to provide services across state lines. Therefore, it’s important to be familiar with the laws governing the jurisdiction(s) where you are licensed as well as the jurisdiction(s) where your patients live.

At this point in time, risks for psychological practice appear to be low, especially where practitioners keep informed and proceed thoughtfully. 

In addition to this FAQ and other APA resources, psychologists will want to be familiar with guidance issued by federal and state agencies, their state licensing board, and their liability carrier. Some frequently asked questions follow.

• Is abortion now illegal in the state where I practice?
• Are there risks associated with talking with my patients about abortions?
• Should I share my opinion on abortions with my patients?
• Could I go to jail for discussing abortion or related issues with my patients?
• Do I have to report my patients who seek or have received an abortion?
• Do I have to share the mental health records of patients who received an abortion?
• How does the Supreme Court decision affect interstate practice (PSYPACT)?
• How do I engage in advocacy regarding reproductive health care?

Keep in mind that the information currently available on changes to reproductive health care access in each state is limited and expected to change in the coming months. The full impact of the Supreme Court’s decision is not yet known, therefore, the level of risk involved for individual practitioners—depending on the facts and circumstances of their professional situations—cannot reasonably be anticipated at this time.

While the situation is dynamic, good psychological practice remains unchanged. Psychologists should still prioritize the welfare of their patients, protect confidentiality, and ensure their patients’ safety. The changing landscape regarding access to reproductive health care does not change the fundamental approach to psychological care.

[Related: The facts about abortion and mental health]

Am I practicing in a state where abortion is, or is soon to be, illegal under all or certain circumstances?

The Supreme Court’s decision to overturn Roe v. Wade has put the regulation of abortion in the hands of the state legislatures.  In anticipation of this ruling, 13 states had enacted “trigger laws,” designed to ban or restrict abortion once “triggered” by the Supreme Court’s reversing of Roe v. Wade. Not all trigger laws immediately kicked in, and some that did were immediately challenged, delaying their enforcement. About half of states are expected to ban or limit abortion in upcoming months.

Staying up to date on any laws affecting the states where you practice is important. For an updated list of the existing bans and restrictions on abortions within each state, the Center for Reproductive Rights has provided a map that is updated in real time. The Guttmacher Institute, a research group that collects information on abortion laws across the United States, is also a great resource to stay current on your state’s laws.

Will states be able to criminalize the conduct of individuals traveling across state lines to obtain an abortion?

Some states with abortion bans and/or significant restrictions are proposing to reach across state lines to enforce their antiabortion laws and restrict an individual’s right to travel to a state where it is still legal to receive an abortion. For example, a bill in Missouri, which failed to pass in 2021, would have made it illegal to receive an abortion in a state where abortion is legal if the fetus was conceived in Missouri. The enforceability of such laws (and similar ones) is likely to be the subject of much litigation, specifically on the issue of whether states can criminalize behavior occurring in other states.

What are the risks of talking with patients about, or providing them with, resources for how to obtain an abortion if my state bans or restricts them?

If you practice in a state where abortion is illegal or heavily restricted, there may be some legal risks to providing patients with information that is too specific about how to obtain one in another state. The risk is that doing so might lead to the allegation that you assisted with or “aided and abetted” the abortion, particularly in states that seek to punish those who help others seek abortions. For example, referring a patient to a specific clinic for an abortion or helping them make an appointment may create a somewhat stronger argument that you assisted them in obtaining one. You should not provide a patient with transportation or financial assistance for an abortion.

In addition to liability risks, stepping outside of your normal professional role with patients may create issues with your malpractice coverage, which generally covers you for claims arising from acting as a psychologist.

By contrast, it appears that this risk may be lower if you provide general information or resources. Directing patients to websites for organizations that specialize in accessing reproductive health care will likely give them information than you can provide

How risky is it to talk to my patients about the mental health implications around the decision to get an abortion?

While there are many other ways for patients to obtain information on reproductive health care, you may be a trusted source of mental health services for patients considering an abortion. Focusing on the emotional, family/cultural, and mental health issues patients may experience when contemplating abortion is an appropriate and seemingly low-risk role to play. Psychologists should not make decisions for patients but instead help them work through potential options to make the decision that is best for their health. Doing so would also seem to reduce your risks.

I have strong feelings about the Supreme Court’s decision. How can I make my voice heard without incurring legal risk?

You can make your voice heard as a citizen by engaging in political activity—for example, by supporting candidates, contacting members of Congress, contributing to electoral campaigns, getting involved with state and local legislative efforts, and donating to organizations that support your position.

Regardless of your stance on reproductive health care, when you are providing professional services, it is important to remain professional, adhere to APA’s code of ethics, protect patient privacy, and ensure your patients’ safety.

Should I share my opinion with patients on the Supreme Court ruling, reproductive health care, or related issues?

Everyone has an opinion on reproductive health care, so it will generally be safer for you to avoid sharing your personal stance with patients. Withholding your opinion from patients will reduce the risk of licensing board complaints, and having your patient influenced by or unwittingly entangled in your views or activism.

Your stance on whether access to abortion should be permitted or restricted is a personal, moral stance. The professional position of psychology is that access to reproductive health care is a human right. The psychologist’s ethical responsibility is to the person to whom psychological services are being provided. Your professional obligation remains to minimize harm to your patient and to maintain their confidentiality.

Your chances of facing the risks and issues discussed in this section may be reduced if you pay attention to the guidance about your role as a psychologist.

This section focuses on the most common scenario of concern—where both you and the patient are located in a state that has banned or severely restricted abortion. We also discuss how the dynamics may change if you are providing services to a patient from another state, for example under PSYPACT.

What potential liability will I face if I discuss abortion issues with patients who live in states with bans or restrictions?

While certain states have expanded the scope of civil and criminal liability for the performance or receipt of an abortion, we are not aware of psychologists being targeted under these laws for providing mental health services to their patients who received or are considering abortions. The current main targets for these laws are providers directly involved in performing abortions, such as medical providers. Some states are also targeting patients receiving abortions and a few states are also looking for ways to widen the list of who can be held responsible to those providing support for seeking abortions.

Because psychologists who exercise due caution are likely to have little or no direct connection to administering an abortion procedure, they have less risk of facing criminal or civil liability. The main risk would be allegations of indirect involvement in criminal acts under theories that the psychologist helped facilitate the illegal abortion by becoming too involved in helping the patient receive one. The legal theories have names like “aiding and abetting” the crime or “acting as an accomplice.”

Additional information on “aiding and abetting”

States like Texas have already written laws specifically expanding abortion liability for those “aiding and abetting.” For states that have made abortion a crime, those who help facilitate an abortion may be charged with aiding and abetting even if the abortion statute doesn’t specifically mention it (This kind of liability exists under the criminal law of most states). For most psychologists, who stay informed and proceed thoughtfully, there is probably a low risk of this type of liability.  

Note that despite the strong incentives for people to bring lawsuits against anyone who aided or abetted an illegal abortion under the Texas “bounty hunter” law that went into effect in September 20211, APA, the Texas Psychological Association, and the main malpractice insurers for psychologists are aware of no such cases targeting psychologists.

Currently, psychologists do not appear to be the main targets for these enforcement efforts, and states with overzealous prosecutors contorting laws beyond their legislative intent are likely to be challenged. In some prochoice states, lawmakers are taking action to protect residents from liability related to reproductive services legally performed in their state but that may be illegal elsewhere.2

We understand that licensing board complaints are also a concern for members. APA plans to consult with the Association of State and Provincial Psychology Boards (ASPPB) to provide guidance on that soon.

If my patient is considering an abortion that may be illegal in my patient’s state, will I be required to report it?

Currently, no state requires that a psychologist report that a patient intends to receive or obtain an abortion. Certain states have abortion-related reporting requirements but these apply to providers performing the abortions and/or facilities where abortions are performed. We are aware of no such reporting requirements that apply to psychologists outside of those settings. The APA Ethics Code does not require reporting even under a mandatory reporting law (Standard 4.05(b)). As detailed below, there also appears to be no obligation to report that a patient is seeking or has obtained an abortion, even where it might trigger child abuse or duty-to-warn reporting in a state that changes the definition of “child” and “person” to include fetuses. 

Additional legal detail on child abuse reporting requirements

Some states have redefined “personhood” to include an unborn child or have enacted fetal homicide laws. That creates the concern that this redefinition could trigger mandatory reporting requirements related to child abuse or duty to warn.

Recent guidance by the HHS Office of Civil Rights (OCR), confirmed that the HIPAA Privacy Rule would not permit disclosure of patient information related to abortion under mandatory child abuse or duty to warn reporting. OCR also stated HIPAA would not permit disclosure to law enforcement because a patient’s intent to obtain an abortion is not considered a serious threat to the health and safety of a “person” or abuse of a “child” under federal law.

APA agrees with OCR’s analysis that HIPAA would bar disclosures, but we caution that some state agencies or courts might apply HIPAA regulations incorrectly or simply choose to ignore federal law. If you find yourself in that situation, contact your malpractice carrier or your personal attorney. Also, please contact the lawyers in APA’s Office of Legal and State Advocacy (LSA) who do not provide legal advice but can provide information that may be helpful.

This analysis may change if a state enacts a law that specifically requires psychologists to report that a patient is considering or had an abortion. We have asked state leaders to watch for any such proposals and to contact LSA immediately to discuss patient privacy concerns.

Until state laws on abortion reporting are more settled, and the enforcement of these laws has been tested, one strategy to consider is discussing with your patient the potential limits to your confidentiality and potential “duty to report” obligations in your state. That discussion can empower your patient to decide whether to raise or possibly avoid certain topics that might trigger your reporting obligation.

What happens if a prosecutor or law enforcement agent in a state with an abortion ban seeks the mental health records of a patient who received an abortion?

APA’s Office of Legal and State Advocacy (LSA) believes that the likelihood of prosecutors or enforcement agencies seeking your patient’s mental health records for abortion prosecutions is low, and that the risk of having to produce them is probably even lower.

Seemingly, A) those seeking to enforce abortion laws would be much more likely to seek the patient’s medical records from physicians and clinics that provide abortions; and B) even if they sought your patient’s mental health records, there would be a low risk that you would have to produce patient records in response to a subpoena or court order, which we explain further below.

As explained in the FAQ about mandatory reporting, the OCR guidance states that HIPAA prevents you from providing patient information under child abuse or duty to warn laws (Those laws might be the state agency’s justification for obtaining patient records). With record requests, you must also consider whether the Privacy Rule exceptions for subpoenas and court orders would apply.

APA has consistently suggested that absent patient consent you should not provide patient records or information in response to a subpoena. Because of the psychotherapist-patient privilege in every state, our recommendation has been to await a court order.

If you receive a subpoena in connection with an abortion investigation or prosecution you should consider asserting the psychotherapist-patient privilege on your patient’s behalf, as the grounds for not divulging patient information. You should also contact your malpractice carrier or your state psychological association. You may also contact LSA, especially in the unlikely event that a prosecutor or investigator is able to obtain a court order that directs you to produce patient information despite the privilege. While LSA generally doesn’t suggest that members challenge a court order to produce patient records, this is one area where members may want to challenge a court order after appropriate consultation including with regard to ethics (e.g., Standards 1.02 and 4.05), given the importance of this patient privacy issue and the significance of precedent in this emerging legal area. Although APA cannot give legal advice, we can empower your State, Provincial, and Territorial Psychological Association to fight any proposed bill like that to protect your patients’ privacy.

While there currently seems to be a relatively low risk of an abortion investigator or prosecutor obtaining a patient’s records, you should consider the record keeping suggestions in the next FAQ to address that risk. We will provide future guidance to address unique record request issues that can arise if you are part of a large EHR system, and the solutions in the next FAQ are not acceptable or practical in your setting.

Should the concerns in the mandatory reporting and patient records requests FAQs affect my record keeping practices when talking with patients about abortion decisions?

As with other situations where a patient may be put at risk by the psychologist putting certain details in their record, you should consider the potential impact on patients of describing in the record your discussions with them about reproductive health issues. While there currently appears to be a relatively low risk of those records being obtained by prosecutors/investigators and used against your patient, those risks are hard to predict and could change with future laws. Thus, for example you might simply note that you discussed “family issues” or “health care decisions” with the patient.

If prosecutors obtained a record written like that, they would hopefully determine that you were not a fruitful lead and not bother with interviewing you for further information about your patient.

Some have suggested that a psychologists can protect themselves from possible liability by keeping detailed notes regarding conversations with patients about abortion decisions (to document that they have stayed within the roles suggested in the risk-related FAQs). LSA believes that adopting a general policy on the boundaries of abortion discussions will provide risk management protection for the psychologist—without risking incrimination of patients. We will make a template policy available soon on APAServices.org.

⁠What if I’m providing psychological services via telehealth from a “safe state” where abortions are allowed to a patient in a state where abortion is now or becomes illegal?

When serving patients across state lines by telehealth under PSYPACT or temporary practice provisions, you should be aware of the law where the patient is located. The PSYPACT Commission has published an outside law firm’s opinion that the state where the patient is located could impose its requirements regarding public health, safety, and welfare on the out-of-state psychologist practicing under PSYPACT. This could include mandatory abuse reporting, controlled substances, duty to warn/protect and informed consent. That would likely include any mandatory reporting requirements discussed in the mandatory reporting FAQ.

In this scenario, you should consider the suggestions above for psychologists located in antiabortion states. But being out of state, particularly in a prochoice state, should provide you some level of insulation. For example, it would be more difficult for out-of-state abortion investigators or prosecutors to subpoena your records. It is also unclear whether an antiabortion state could impose criminal liability on an out-of-state psychologist alleged to have aided or facilitated an abortion. Some prochoice states have passed laws to restrict how health care records are accessed across state lines. For example, Connecticut’s approved bill, H.B. 5414 (PDF, 98KB), prohibits out-of-state judicial requests from issuing subpoenas seeking reproductive health PHI within Connecticut.

How do I engage in advocacy on this issue?

For those who want to participate in advocacy, APA Services Inc. will provide information about ways to engage in advocacy that are aligned with APA’s policy positions (PDF, 73KB), coordinated within APA Services, and seek to support psychologists who are providing care to vulnerable populations.