Questions to Help Hospital Systems Support and Empower Physicians in the Post-Roe Legal Landscape

This article was originally published in June 2022 and has since been updated.

Given the inequitable and volatile status of legal access to abortion care in the United States, it is critical that hospital systems be able to clarify to their physicians and allied health care professionals the extent and limitations of reproductive health care that the system will support.

Hospitals in states with abortion bans, including burdensome restrictions and gestational bans, must maintain clear policies that empower clinicians to practice with autonomy within the hospital’s set parameters and consistent with best practices and the standard of care. In all cases, hospitals should provide guidance that permits treatment to the full extent of applicable state law and support and defend their clinicians when they provide care to patients. Hospitals should also establish processes that health care professionals can follow to connect patients with care that they are not allowed to provide, including care in other states. As patients in need of care continue to travel beyond state lines for care, hospitals in unrestricted states should take action to address the capacity issues created by increased volume of patients.

To help clinicians and hospital systems collaborate on joint approaches to address the changing and highly restricted legal landscape around abortion, ACOG has developed the following list of questions that hospital administrators and leadership should ask themselves.

What is our institution doing to help protect clinicians and their pregnant patients who present for care? Does our institution have policies and processes to protect health care professionals from the consequences of abortion bans when they provide evidence-based medical care to intervene in emergent situations? What does liability coverage look like in these situations?

Legal restrictions on abortion affect a number of aspects of patient care. For example, in states with laws criminalizing abortion provision, clinicians may be nervous to provide pregnant patients with needed diagnostic tests (eg, radiology imaging) or interventions (eg, anesthesia or surgical intervention for a ruptured appendix during pregnancy) due to fear of inadvertently causing a pregnancy loss. They may also be confused about the effects of abortion restrictions on miscarriage, management of pregnancy of unknown location, and what to document in the medical record when caring for patients.

It is essential that hospitals support clinicians as they provide and connect pregnant patients with necessary care. This support may involve setting up meetings between clinicians and the hospital’s legal counsel to review risks and discuss how the hospital will support and protect clinicians; establishing hospital policies emphasizing clinicians’ responsibility to provide compassionate, evidence-based, and nonjudgmental care to their patients; and bringing in consultants to help clinicians understand best practices for preventing criminalization of pregnant patients who may present, for example, after self-managing an abortion.

How can our institution implement processes for protecting the privacy of people who travel from states in which abortion care is banned?

Concerns remain about potential legal consequences for patients who travel out of banned states to access abortion care. It is important to review and understand the patient protections afforded by the Health Insurance Portability and Accountability Act (HIPAA). Hospitals should consult with experts in HIPAA law and ensure that clinicians and staff implement practices and consent processes that are as protective as possible and consistent with the law. This includes the 2023 proposed rulemaking in the HIPAA Privacy Rule to Support Reproductive Health Care Privacy, which seeks to clarify and strengthen the protections afforded those who receive and provide reproductive health care by prohibiting the use or disclosure of protected health information to identify; investigate; prosecute; or sue patients, health care professionals, or any others involved in the provision of legal reproductive health care, including abortion. ACOG is hopeful that this rule will be finalized in the near future.

What steps can our institution take to support clinicians when they are unsure what care they can provide to a patient under a state’s laws?

Access to reproductive health care varies across states—and even within states, as legislation and court orders can result in laws that are changing quickly. The vast majority of state laws banning abortion have exceptions for “medical emergencies” that are inherently vague, with language referencing “serious risk of substantial and irreversible impairment of a major bodily function;” “serious, permanent impairment of a life-sustaining organ;” or “a life-threatening physical condition aggravated by, caused by or arising from a pregnancy.” In addition, clinicians must practice in rapidly changing circumstances, using their experience and expertise to make judgments about what care is needed in particular case.

Given that clinicians must practice and make medical decisions in real time and in grey areas, it is essential that hospitals and health care systems are clear about what their clinicians may do and when, and support and defend their clinicians if their decisions are attacked under restrictive state laws related to abortion care. For example, hospitals can make clear that when clinicians use reasonable medical judgment when treating patients presenting with obstetric complications, including previable premature rupture of membranes, miscarriage or early pregnancy loss, excessive bleeding, gestational hypertension, preeclampsia or placental abruption, or one of the many other potential obstetric complications, their decisions will be respected and defended. Hospitals should, to the extent possible, provide legal protections and defense resources for clinicians who operate in accordance with hospital policies.

Clinicians may also share with hospital administrators ACOG’s resource on understanding and navigating medical emergency exceptions in abortion bans and restrictions.

Does our institution have resources available to clinicians in real time? Do we provide guidance in a timely fashion and in a way that maximizes care consistent with the law in our state?

Hospitals and health care systems must provide adequate support to their clinicians as they navigate state abortion bans and restrictions. While decisions about care should be made using the judgment and expertise of the treating physician together with their patient, hospital systems can consider providing consulting or other support to clinicians as they navigate medical emergency exceptions. If such an option exists at an institution, it will be helpful to include a physician with family planning expertise and a maternal–fetal medicine specialist on the team. Smaller or community hospitals may find it helpful to collaborate with other institutions or academic centers in their area. In all cases, hospitals should provide guidance that permits treatment to the full extent of applicable state law and support and defend their clinicians when they provide that care to patients.

For institutions in restrictive states: How can our hospital establish seamless transfer and referral of patients we are unable to care for at our institution due to state laws or personnel availability?

When establishing and maintaining processes to refer and transfer patients in need of reproductive health care to unrestricted states, hospitals must consider legal questions that may arise, including but not limited to state laws addressing abortion referrals, the Emergency Medical Treatment and Active Labor Act, and state laws related to patient abandonment. For example, hospitals should provide guidance explaining under what circumstances a clinician can directly transfer a patient to an institution in another state and when clinicians are limited in providing a “warm” referral to facilitate care.  Clinicians and hospitals should develop clear hospital policies for referral and transfer in order to implement those processes without delay when in need and should do so to the full extent permitted under the law. If necessary, hospitals can obtain legal counsel to ensure that they are providing or referring for care when permitted under exceptions to state laws restricting abortion. In all cases, it is important for hospitals to prioritize the needs of their clinicians and patients rather than minimizing or avoiding legal risks or interpreting laws more narrowly than necessary.

For institutions in protective states: What is our hospital doing to meet capacity demands for people who need to access abortion care at our institution?

Hospitals in protective states have experienced surges in patients attempting to access abortion care at these institutions. For example, according to the Guttmacher Institute, Colorado, Illinois, and New Mexico experienced 89%, 69%, and 220% increases in abortion volume respectively between 2020 and 2023, almost all of which reflect patients traveling from out of state. Hospitals establishing and maintaining policies to support this increased need should consider processes that can be implemented to better facilitate transfers and referrals for abortion care, such as a secure, independent online system to facilitate preregistration, appointments, and communication between patients and abortion clinicians. Policies for payment should be presented clearly to patients prior to the appointment and implemented consistently by staff. Other considerations include adjustments in clinician and staff hours, exploring innovative clinic scheduling, and determining how to support clinicians and staff to prevent burnout and ensure staff retention. Hospitals in unrestricted states should monitor changing abortion status in neighboring states to identify potential increases in volume in the future and update their policies and processes when needed.