Frequently asked questions about abortion laws and psychology practice

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 about the potential impact on them of reproductive health care laws. Since psychologists have embraced telehealth and many use technology to provide services across state lines, 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.

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(s), 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)?

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

[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 states. In anticipation of the ruling, 13 states enacted “trigger laws,” designed to ban or restrict abortion upon the Supreme Court’s reversal of Roe v. Wade. Not all trigger laws immediately kicked in, and some that did were immediately challenged in court, delaying their enforcement.

Staying current on laws affecting the states where you practice is important. For a list of existing abortion bans and restrictions within each state, the Center for Reproductive Rights has provided a map that is updated in real time. The Guttmacher Institute, a well-respected research group that collects information on abortion laws across the United States, also tracks current state abortion-related laws.

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

Some prochoice states are passing legislation to shield residents from facing penalties under other states’ antiabortion laws. Meanwhile, other states with abortion bans 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. Over the upcoming months the enforceability of abortion-related travel and similar laws are likely to be the subject of much litigation, specifically on whether states may 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 legal risks to providing patients with information too specific about how to obtain an abortion 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 establish a basis for a state to assert that you assisted them in obtaining an abortion. Similarly, providing a patient with transportation or financial assistance for an abortion could create significant legal risk for you.

In addition to legal risks, stepping outside of your regular professional role with patients may create issues with your malpractice insurance, which generally covers you for claims arising from acting within the scope of your authority as a psychologist.

By contrast, your legal risk may be less if you provide general information or resources, for example, by directing patients to websites for organizations that specialize in accessing reproductive health care.

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 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. As in most treatment, 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?

Regardless of your stance on reproductive health care, it is important to remain professional when you are providing professional services. This includes adhering to APA’s Ethical Principles of Psychologists and Code of Conduct (2017), protecting patient privacy, and ensuring your patients’ safety.

You may make your voice heard as a citizen by engaging in legislative and 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.

APA Services already has information available about ways to engage in advocacy that are aligned with APA’s policy positions (PDF, 73KB) and support psychologists who are providing care to vulnerable populations.

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

Your stance on whether access to abortion should be permitted or restricted is a personal, moral stance. It may generally be safer for you to avoid sharing your opinion with patients. Withholding your opinion from patients is not only good practice but will deter having your patient influenced by or unwittingly entangled in your views or activism and may reduce the risk of potential complaints being filed with state licensing boards.

APA’s Council of Representatives has long held that access to reproductive health care is a human right. Furthermore, 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 focus on guidance about your role as a psychologist.

This section focuses on the most common scenario of concern—where both you and the patient are 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 abortions, APA is 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 appear to be providers directly involved in performing abortions, such as medical providers, and patients receiving abortions. However, a few states are seeking ways to broaden the list of individuals who can be held responsible for providing support to those seeking abortions.

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

Additional information on “aiding and abetting”

States like Texas have already passed laws specifically expanding abortion liability for those “aiding and abetting.” In states that have made abortion a crime, individuals who help facilitate an abortion may be charged with aiding and abetting even if the abortion statute doesn’t specifically mention aiding and abetting. (This kind of liability exists under the criminal law of most states.) For psychologists who stay informed, proceed thoughtfully, and focus on their role as a psychologist, there appears to be less risk of this type of liability.

Note that despite the strong incentives ($10,000) for people to bring lawsuits against anyone who aided or abetted an illegal abortion under the Texas “bounty hunter” law, which went into effect in September 2021, APA, the Texas Psychological Association, and the main malpractice insurers for psychologists are unaware of such cases being brought against psychologists.

Currently, psychologists do not appear to be the main targets for these enforcement efforts. As mentioned earlier, such aiding and abetting provisions of antiabortion laws are being and will be challenged in court. In response to these aiding and abetting efforts, some prochoice state lawmakers are taking action to protect residents from liability related to reproductive services legally performed in their state but that may be illegal elsewhere.

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 psychologists to report a patient who 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. APA is unaware of reporting requirements that apply to psychologists outside of those settings. APA’s 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. These state actions create the concern for psychologists that such redefinitions could trigger mandatory reporting requirements related to child abuse or duty to warn.

Recent guidance by 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.

Despite OCR’s analysis that HIPAA would bar disclosures, some state agencies or courts might apply HIPAA regulations incorrectly or focus exclusively on state laws. If you find yourself in a situation where a court, law enforcement, or prosecutor seeks to compel the disclosure of your patient information related to abortion, contact your malpractice carrier and an attorney who is familiar with this area of law and authorized to practice in your state. Also, please contact APA’s Office of Legal and State Advocacy (LSA); although they do not provide legal advice, they can provide information that may be helpful to you and your representative(s).

APA’s analysis could change if a state enacts a law that specifically requires psychologists to report that a patient is considering or had an abortion. We are asking State, Provincial, and Territorial Association (SPTA) leaders to watch for any such legislative or state agency proposals and if such matters arise, 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. The discussion may 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?

At this time, APA is not aware of prosecutors, law enforcement, or state agencies seeking mental health records of psychologists for abortion prosecutions. As explained in the FAQ about mandatory reporting, OCR guidance states that HIPAA protects you from providing patient information under child abuse or duty-to-warn laws that may serve as the state agency’s justification for seeking such patient records. With record requests, you may also want to consider whether the Privacy Rule exceptions for subpoenas and court orders would apply.

Generally, patient records or information may be handed over in response to a subpoena with patient consent only. In most states there is also the psychotherapist-patient privilege. In response to court orders seeking patient records or information, you may want to assert the privilege because it could provide grounds for not divulging the patient information. You are also strongly encouraged to contact your malpractice carrier. We also suggest that you contact your SPTA, especially in the unlikely event that a prosecutor or investigator is able to obtain a court order directing you to produce patient information despite the privilege (if it exists in your state).

While there currently seems to be a relatively low risk of a prosecutor, law enforcement, or a state agency obtaining a patient’s records from psychologists, you may want to consider the record keeping suggestions to address that risk in the next FAQ.

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 your describing in the record discussions with them about reproductive health issues. While there currently appears to be a relatively low risk of those records being obtained by state prosecutors and used against your patient, those risks are unpredictable and evolving. Thus, for example, you might simply note that you discussed “family issues” or “health care decisions” with the patient.

⁠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 provided guidance that under PSYPACT, the state where the patient is located could impose its requirements regarding public health, safety, and welfare on the practicing out-of-state psychologist. These requirements could include mandatory abuse reporting, controlled substances, duty to warn/protect and informed consent, and 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. Being out of state, particularly in a prochoice state, would seemingly make it more difficult for out-of-state prosecutors to subpoena your records. Whether an antiabortion state could impose criminal liability on an out-of-state psychologist alleged to have aided or facilitated an abortion remains unclear so soon after the enactment of post-Roe v. Wade state laws. At the same time, some prochoice states have passed laws to restrict how health care records are accessed across state lines.