Murky Legal Landscape for Docs Advising Patients on Self-Managed Abortions

Murky Legal Landscape for Docs Advising Patients on Self-Managed Abortions

July 23, 2022 0 By Jennifer Walker

As new abortion restrictions take effect across the U.S. in the wake of the Supreme Court’s decision on Dobbs v. Jackson Women’s Health Organization, obtaining an abortion has become nearly impossible in some states, leading many to attempt to terminate their pregnancies outside of the formal healthcare system.

Self-managed abortion methods have been around for decades, and have become increasingly safer due to the widespread availability of the medications mifepristone (Mifeprex) and misoprostol (Cytotec).

Since the Dobbs decision, more patients have turned to the internet to learn how to self-manage their abortions. While experts believe it is critical for healthcare providers to counsel patients on how to do this safely, a murky legal landscape and varying state regulations have made it complicated for clinicians to intervene.

Abortion advocates have promoted a “harm reduction approach” to self-managed abortion, ensuring that patients have access to information on evidence-based, safe methods.

What Is Self-Managed Abortion?

Self-managed abortion refers to any action taken to end a pregnancy outside of the formal healthcare system, according to guidance from the Society of Family Planning, including self-sourcing mifepristone and misoprostol, consuming herbs or botanicals, ingesting toxins, or using physical methods.

A cross-sectional survey study estimated that 7% of women in the U.S. had attempted self-managed abortion at some point during their lives, with most attempting to self-manage with less effective methods, including herbs or alternative medications.

Self-managed abortions are not new. When some people think of self-management, images that come to mind include the “coat hanger” or “back alley” abortions that occurred before Roe v. Wade went into effect.

“Unsafe abortion definitely happened in the pre-Roe times,” said Nisha Verma, MD, MPH, an ob/gyn and abortion provider in Washington, D.C. “Those are not the only things that self-managed abortion looks like, especially since mifepristone and misoprostol became more available over the last 20 years.”

Experts agree that using mifepristone and misoprostol to terminate a pregnancy is the safest self-managed method. The drugs are approved by the FDA through the first 10 weeks of pregnancy, and are used in the majority of abortions in the U.S.

However, in many states with stringent abortion restrictions, abortion pills are banned too.

Interest in Self-Managed Abortion On the Rise

The overturning of Roe immediately led to increased interest in self-managed abortion. Organizations such as the non-profit Plan C, which directs patients to alternative sources for abortion medications, including overseas providers that ship pills to the U.S., saw an influx of visits to its website the day after the Dobbs decision.

Elisa Wells, MPH, co-founder and co-director of Plan C, told MedPage Today that internet visitors to their site jumped from 3,400 on the day before the ruling to 209,000 the day after — a 6,000% increase.

Previous studies have also shown a jump in self-managed abortion requests following the introduction of strict abortion laws. In the 3 months after Texas enacted its “fetal heartbeat” law last year, Aid Access, an overseas abortion pill provider, received 174% more requests for medications than it did before the law was passed.

Self-managed abortion is explicitly criminalized in three states — Oklahoma, South Carolina, and Nevada. However, many other states have laws that could be interpreted to criminalize patients who self-manage.

Lauren Paulk, JD, senior research counsel at If/When/How: Lawyering for Reproductive Justice, said that laws criminalizing self-managed abortion complicate the role of the provider in patient counseling and treatment.

“It’s really an unfair position that medical providers are placed in,” Paulk told MedPage Today. “We want to make sure that healthcare providers know that there is no reason they need to report self-managed abortion.”

Verma put it a bit more bluntly: “I did not become a doctor to become a tool of the state or a tool of law enforcement.”

“That is not our role,” she added. “Our role is to build a relationship with our patients and be able to provide them with compassionate, evidence-based care.”

Can Docs Counsel Patients on Self-Managed Abortion?

When it comes to counseling patients, Paulk said that a “harm reduction approach is really important.” Giving patients access to information about the safest way to terminate a pregnancy is critical to reducing dangerous methods.

“I think it’s really important for medical professionals to understand that no one can take away their right to disperse medical information,” she noted. “Information about self-managed abortion in general is something that we believe to be protected by the First Amendment.”

However, there’s a difference between medical information and medical advice, Paulk pointed out.

Medical information may include broad discussions about a patient’s options, such as what self-managed abortion is, how to safely use abortion medications, and the existence of online abortion pill sources, while advice might include specific information about the websites where a patient could find medications or obtain an abortion.

“The more general the conversation is, the more it is likely to be First Amendment-protected speech,” said Carmel Shachar, JD, MPH, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

Providing Aftercare for Attempted Self-Managed Abortions

Some doctors are worried that they may criminalize their patients, or be criminalized for treating patients, who experience complications after a self-managed abortion, according to Shachar.

Studies have shown that serious complications from medication abortion, including uterine perforation, hemorrhage, or sepsis, are rare. However, some patients may seek care for other symptoms after self-managing, including bleeding or pain, and may go to emergency rooms or urgent care settings.

As clinical management of patients who attempt a self-managed abortion looks nearly identical to care for patients with spontaneous loss, providers may not need to ask or document in medical records whether a patient intentionally tried to end their pregnancy, according to the Society for Family Planning.

Guidance from the society also noted that providers can avoid criminalization of their patients by documenting only clinically necessary information.

“If it’s a situation where you don’t necessarily need to know, ‘okay, am I looking at a self-managed abortion or am I looking at a miscarriage,’ perhaps it’s better to just treat the situation in front of you,” Shachar said. “And the same goes for the way that you might document that in medical records.”

Providers may want to ask a patient if they previously had an ultrasound to rule out ectopic pregnancy, according to the guidance.

However, state laws prohibiting abortion may complicate providers’ ability to treat patients with incomplete terminations, especially when fetal cardiac activity is detected, experts noted. The Society for Family Planning states that in cases in which a patient presents with light bleeding and a continuing pregnancy, a provider might not be able to intervene. Clinicians should work with their hospital or clinic staff to discuss ways to provide “evidence-based, compassionate care” in these situations, the society said.

While self-managed methods of abortion can be safe, and may be the best option for some, some experts are disappointed to see patients forced to choose self-management in a post-Roe world. Shachar applauded the websites helping patients find ways to self-manage abortion as care becomes further restricted, though she noted that those who want guidance from a clinician should be able to get it.

“I wish that women weren’t being pushed to have to go outside the existing medical structure to get the care they need,” she said.

  • Amanda D’Ambrosio is a reporter on MedPage Today‚Äôs enterprise & investigative team. She covers obstetrics-gynecology and other clinical news, and writes features about the U.S. healthcare system. Follow