Kiernan Cobb used to care for abortion patients in Oklahoma, drawing up lidocaine blocks, doling out medication, and starting IVs before procedures. That was before the state instituted a near-total ban on abortion last April, and Cobb started driving to Kansas to staff a Wichita clinic, waking up at 7 a.m. to make the two-hour trip from Oklahoma City. After working through the day, they’d stay in a hotel to work the following day before driving back home.
“I would rather be doing it in my own community in the same way that patients would also rather be getting care in their own community,” said Cobb, but that’s no longer an option. They’ve been a nurse for almost four years now, having also worked in Texas when abortion was still legal there. When they’re not staffing abortion clinics, they work in an emergency room as a critical care nurse.
With Roe overturned, the Wichita clinic fields as many as 16,000 phone calls a day from patients vying for the 40 to 50 appointment slots offered four days a week. The calls continue after hours, with a nurse usually volunteering to take the phone home to answer them throughout the night. The clinic once housed the practice of Dr. George Tiller — the abortion doctor shot dead in 2009 by an anti-abortion extremist, after previously surviving a pipe bomb and being shot in both arms. Some of the same protesters from those days are still stationed outside, photographing the cars and license plates of staff as they arrive for work.
Since Dobbs v. Jackson Women’s Health Organization stripped national protections for abortion last year, the battles that once stopped at the clinic doors have infiltrated almost every area of medical care and put both patients and nurses at risk of criminalization. Within one week in February, Georgia, Alabama, Kentucky, and South Carolina all introduced bills to classify abortion as a homicide. States like Texas, Oklahoma, and Idaho have adopted measures allowing lawsuits against anyone accused of facilitating an abortion.
Cobb isn’t just worried about access to clinics or medication for abortion in states with newly restrictive laws. They’re also worried about how patients will be treated when they show up at an emergency room seeking care after self-managing an abortion or getting one out-of-state. And so, Cobb and other nurses and advocates are working overtime to educate as many providers as possible that there are currently no laws that require them to report if they suspect someone has had or is planning to have an abortion.
Reporting patients to law enforcement is “not only not necessary, it’s actively harmful, and likely a HIPAA violation,” said Lauren Paulk, the senior research council at the reproductive justice legal advocacy organization If/When/How.
But Paulk’s admonition is only so much comfort to nurses as restrictions mutate and proliferate across the country. Left on their own in a landscape of legal confusion, nurses face pressure to give up information about their patients that can lead to their criminalization, or else they could face penalties of their own. The ethical considerations of either choice are something most nurses will have to deal with alone. Add in low rates of unionization and frequently unsafe staffing levels, and Cobb says nurses in ban states are in a vulnerable place.
“Your hospital won’t protect you, they’re not going to protect a nurse — they don’t care.”
LEGAL LIMBO
When the Dobbs ruling came down, Cobb watched the statements roll in from national nursing organizations. The American Nurses Association was “dismayed,” adding that “no nurse should be subject to punitive or judicial processes for upholding their ethical obligations to their patients and profession.” The American Association of Colleges of Nursing said they “condemn any attempt to criminalize safe nursing practice.” When Texas passed S.B. 8, the Texas Nurses Association wrote that the state’s legislation put a “bounty on their head,” and “politics before the wellbeing of nurses” by offering a $10,000 bounty for anyone suspected of aiding and abetting an abortion while deputizing Texans to enforce the law.
“Everybody put out their post-Roe statement, and then that was kind of it,” said Cobb. The statements were affirming, but they offered scant practical support to nurses facing decisions suddenly imbued with potentially dire consequences. What should a nurse in Texas do if a patient came into an emergency room bleeding and said they had managed their abortion at home? What if a patient got a procedure in Kansas but needed follow-up care in Oklahoma — could a nurse safely provide it? What about a patient with a pregnancy of questionable viability? Could they be referred out of state? What if a patient had tissue left over after an abortion? It’s a harmless condition as long as it’s treated, but suddenly, providers weren’t sure if that treatment was legal in every state.
“We don’t want our patients to come in to seek health care and then get arrested.”
And if they’re accused of running afoul of such capricious jurisprudence, whom can they go to?
“Nurses often don’t have clear answers from their medical leadership [that] ‘yes, you will be protected.’ It’s pretty disquieting to ask ‘can I be sued for this?’ and have the answer be ‘I don’t know,” said Kirstin Buck, a sexual and reproductive health nurse and sexual assault nurse examiner in the Midwest.
“They’re leaving these nurses out to hang,” said Deborah Burger, a registered nurse and president of National Nurses United (NNU), of the situation facing nurses in ban states. “She’s damned if she does and damned if she doesn’t. There’s no clear policy, and the hospital isn’t helping [with] trying to make this situation clear.”
As days turned into weeks, and then months, Cobb waited for their hospital to give guidance about navigating a post-Dobbs reality — hospital staff had been required to attend a training module on identifying and treating monkeypox after just a handful of cases appeared in the state, after all — but nothing ever came.
“I think it’s going to have to be very grassroots — people are maybe paying attention to stuff from the national organizations, maybe not, hospitals are not giving guidance, so it’s just gonna have to basically be person-to-person,” said Cobb.
Getting this information out to nurses is so important because health care providers can be, knowingly or unknowingly, one of the biggest threats to abortion patients.
If/When/How has documented 61 cases of people being investigated for self-managing their abortion between 2000 and 2020. Law enforcement considered bringing murder homicide charges in close to half of them. Most often, it was health care providers who called the police. With Roe gone, advocates worry those numbers could get much worse.
Last year, Paulk of If/When/How gave presentations to over 3,000 providers on mandatory reporting and abortion criminalization, often handing out her personal email address so providers can reach her for legal guidance when hospitals aren’t supplying it. Paulk says she’s still getting questions every week on this topic, sometimes through her organization’s helpline, available to both patients and nurses who need legal advice, but also through staff connections or referrals from other abortion hotlines.
Cobb has been working to get this message out too, attending webinars by Nurses for Sexual and Reproductive Health and helping to run an emergency medicine cluster organized through the Reproductive Health Access Project, which convenes critical care providers to share information with nurses across the country. But all these resources are hard to access for nurses who aren’t already connected to the reproductive justice movement.
To help broaden their reach, Cobb worked with a researcher to publish flyers that nurses can post in their emergency rooms to notify colleagues of their responsibility to protect patients and remind them that currently, no states compel providers to be mandatory reporters to law enforcement when it comes to abortions. But that doesn’t mean there won’t be pressure to inform.
“Their first step is to ban abortion or to make it as inaccessible as possible, and their second step is punishing people when they can access it,” said Paulk. “I think that trying to conscript health care providers into that is a natural next step for them.”
PROVIDERS AS POLICE
When Purvi Patel arrived at an Indiana emergency room with heavy vaginal bleeding in 2013, she told the on-call doctor she had miscarried. He didn’t believe her. Suspecting a live birth, Dr. Kelly McGuire called the police and, instead of staying to treat Patel, he joined them to search the streets for the fetal remains. Patel was charged with feticide, which prosecutors argued includes deliberately trying to end a pregnancy even if the fetus survives.
Kelly was a member of the American Association of Pro-Life Obstetricians and Gynecologists, an anti-abortion organization that would go on to push for a ban in Minnesota. Patel was sentenced to 20 years in prison in 2015, becoming the first American woman to be sentenced for feticide. She was released the following year when it was determined that the law had been misapplied, but many worried it was a warning shot.
With thousands of patients now crossing state lines to access abortion, many are returning home to jurisdictions where aftercare is hard if not impossible to find. While abortions are extremely safe, they can require follow-up in case of excessive bleeding or blood clots — particularly when many more patients than before are self-managing abortions at home, sometimes without access to sufficient information about the symptoms to expect. New restrictions that both mandate wait times for abortion after counseling and shut down local clinics also mean that people are, on average, getting abortions later in pregnancy, which, while still safe, can be a more complicated procedure requiring more care.
It isn’t just anti-abortion zealots who are a concern. Given the state of contemporary emergency rooms, providers can be conscripted into policing patients without realizing it.
Half of Americans under 30 don’t have a primary care doctor and almost 30 million are uninsured, making the emergency room the only contact many people have with the U.S. health care system. The porous reality of emergency rooms — with beds separated by curtains, and everyone from housekeepers to X-ray technicians to dieticians interacting with each patient — makes protecting people more complicated than just not calling the police.
“Even if I don’t report a patient but a night shift nurse does, anything that I charted is going to be subpoenable eventually, if they get that far,” said Cobb, adding that it’s crucial to remember that post-abortion care looks exactly like care after a miscarriage. There’s generally nothing medically relevant about the fact that the pregnancy was ended by choice.
Police have more access to patients and their information than ever before. Research by the University of California, Irvine law professor Ji Seon Song documents instances of police taking the names and phone numbers of patients not in their custody, as well as collecting patient cell phones from security guards for evidence. At the entrance to one California emergency room, the sheriff’s office recently installed a camera that read license plates and sent the information directly to law enforcement, including Immigration and Customs Enforcement.
“She’s damned if she does and damned if she doesn’t. There’s no clear policy.”
Doctors and nurses are often direct partners in this work, whether they like it or not, by updating police about injuries and diagnoses of crime victims, performing testing for evidence, or letting an officer know when a patient is ready for questioning.
“I don’t understand why we are constantly being drawn into situations that have absolutely nothing to do with us — our role is to care for our patients no matter who, what, when, where, or how they come into the hospital, and that should continue to be our focus,” said Mawata Kamara, an emergency room nurse who is on the board of the California Nurses Association. “We don’t want to send them to jail or put them in handcuffs — that is not our role and we should not be in this position at all.”
While the demise of Roe has opened novel avenues for the state to dictate the legality of reproductive health care, the criminalization of pregnancy isn’t new. As Dorothy Roberts documents in Killing the Black Body, the direct line between Black women’s pregnancy and law enforcement goes as deep into American history as slavery, a system whose preservation relied on controlling pregnancy outcomes. Roberts also documents how, in the 1980s, Black women were prosecuted for using crack cocaine while pregnant, turning a desperate need for health care into a crime and laying the groundwork for the legal movements for fetal personhood and maternal criminalization we see today. Twenty-five states now require health care providers to report if they even suspect a pregnant woman is using drugs; 24 states consider that usage to be child abuse. Health-care providers are already forced to police their patients, and with the Dobbs verdict, the road ahead is familiar.
“We deal with police officers all the time,” said Kamara. “I can imagine it’s going to happen more and more and it’s going to create tension where there shouldn’t be. We don’t want our patients to come in to seek health-care and then get arrested,” she said.
As the right moves to legally restrict bodily autonomy not only by restricting abortion access but also by regulating gender-affirming care, nurses are struggling to find pathways to resist. If the law demands that health care providers do harm to their patients by placing them in the pathway of violent criminalization, nurses are at a crossroads — what do they risk if they resist?
CRIMINALIZATION OF NURSES
The threats of the post-Roe world come at a time when nurses have less time and less legal and institutional support than perhaps ever before to navigate their own safety and advocate for their patients. Over a third of nurses say they’re likely to quit their job due to stress and burnout, which has only been compounded by the pandemic. Nurses are often forced to juggle more patients than they say is safe at hospitals, stripped to the staffing bone by a drive to maximize shareholder profits. And while nurses have higher union density than some other fields, there are still historically low rates of unionization.
Nurses point to the case of RaDonda Vaught, who was convicted of negligent homicide last spring when she made a drug error that resulted in a patient’s death, as confirmation of their fear that nurses are facing increased threats of criminal prosecution for medical mistakes — all while working under conditions that tend to set them up for failure. The bewildering array of new abortion laws, combined with the litigious avarice of the religious right, means that for many nurses, fear of legal trouble isn’t paranoid.
“We’re outlaws, it’s the wild, wild west,” Buck said, repeating a nervous joke she and other nurses often make. Buck’s workplace is in the process of unionizing, something both she and Cobb say is a vital step for nurses in this environment because it offers them some level of institutional protection in the midst of incoherent and often punitive laws.
“It’s always difficult when you have laws that make no sense,” said Burger of NNU. “So, what nurses are encouraged to do is do the right thing, what they would normally do, and the union would fight for them.”
NNU has a professional performance committee in the states where they work, which supports nurses on ethical questions or complicated patient care issues including abortion. NNU nurses can also reach out to their labor representative with questions or concerns.
“There are certain safety measures that are afforded to you if you’re in a union facility, so that alone is huge,” Burger said.
But the reality is that unions, along with everyone else, aren’t yet sure how these laws will take shape or whether they’ll be used to prosecute nurses. And many nurses — including those in both of Cobb’s workplaces — are fighting so hard to stay above water that union organizing feels like too great a risk. Moreover, the Southern states, where the most punitive abortion restrictions are concentrated, tend to have not only a much lower union density but also “right-to-work” laws used to quash unions.
Since Cobb’s Oklahoma clinic had to pivot from abortions, it started building up programs for gender-affirming care for youth — work that the Oklahoma legislature also just banned. These aren’t separate fights, Cobb says, noting that the language in the bill banning abortion mirrored that of the more recent legislation banning medical care for trans youth.
There are currently no laws that require nurses to report someone if they suspect they’ve had an abortion.
Cobb says that all of this professional anxiety paired with the fact that they’re queer and nonbinary, with a queer and nonbinary partner, means that their days in Oklahoma are probably numbered. It’s not a decision they make lightly — Oklahoma City is home.
“It’s legislatively unsafe to be here and I have to weigh abandoning the work I do in my community with my own personal safety, and that’s hard,” said Cobb.
Cobb doesn’t like the idea of moving to the coasts. They chafe at the way the middle of the country is often spoken about by many reproductive justice advocates and “written off as just a bunch of backwards rednecks — as if rednecks weren’t socialists and union organizers, to begin with. We’re doing our best to create affirming, open, and radical spaces here, it’s just like they’re trying to legislate it out.”
The criminalization of nurses has, so far, been pretty rare. But Cobb says that when it comes to patients getting abortion care, these laws have already achieved their goals.
“They don’t actually have to do anything. It’s just the threat and then we’ll police ourselves.”
Abigail Higgins is a journalist and editor in Washington, D.C. covering labor, gender, health, and inequality for the Washington Post, The Nation, and the New Republic, among other publications.
Closed clinics data courtesy of Caitlin Myers / Myers Abortion Facility Database. Images sourced from Google Maps .