MERRIAM, KANSAS - AUGUST 02: Voters cast their ballots in the Kansas Primary Election at Merriam Christian Church on August 02, 2022 in Merriam, Kansas. Voters in Kansas will decide on whether or not to remove protection for abortion from the state's constitution.
What the Kansas abortion result means for the country
01:58 - Source: CNN

Editor’s Note: Aziza Ahmed is a professor of law at Boston University School of Law and the author of the forthcoming book “Feminism’s Medicine: Law, Science, and Social Movements in the AIDS Response.” Ji Seon Song is an assistant professor at the University of California, Irvine School of Law. The views expressed in this commentary are their own. Read more opinion on CNN.

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At first glance, the US Supreme Court’s decision overturning Roe v. Wade could thrust us back into a world of do-it-yourself abortions that calls to mind gruesome images from decades past of women injuring themselves with sharp objects and ingesting chemicals because safe abortions were inaccessible. But this time it doesn’t have to be that way.

Aziza Ahmed

Thanks to medication abortion – pills that can be taken in one’s home within the first 10 weeks of pregnancy – at-home abortions can be conducted discreetly and safely. In fact, now, most abortions in the United States are done via medication, according to data from the Guttmacher Institute, a reproductive health and rights think tank.

Ji Seon Song

Despite the Food and Drug Administration’s approval of medication abortion, however, some pregnant people may not be able to get these pills due to restrictive state laws. In these cases, people will inevitably try to access them under the radar, most likely with help from health care professionals and through the mail. Doing so opens the door to two potential gray areas involving privacy that could become legal pitfalls for those seeking abortions, potentially exposing them and health care providers to possible prosecution.

Mail privacy

Much attention is rightly being paid to how state law enforcement agencies may mine electronic data from internet searches, cell phones and other data-storing platforms to use against people who have abortions. But criminal investigations of medication abortions can rest on far more ordinary means.

Abortion pills can be mailed to people’s homes, which allows them to receive the medication discreetly.

With medication abortion, a person can end a pregnancy by taking two pills instead of having a surgical procedure.

The first pill is mifepristone, sold under the brand names Mifeprex or Korlym. It’s also known as RU-486. It blocks progesterone, a hormone needed for the development of pregnancy. After waiting 24 to 48 hours, a patient takes a second pill, called misoprostol, which works to empty the uterus through cramping and bleeding.

But what type of surveillance might be implemented by officials in states opposing abortion to catch those who order these pills, and what kind of legal issues does this raise?

The Fourth Amendment protects people from government searches and seizures of our bodies and belongings in contexts in which there is a reasonable expectation of privacy – and that extends to the letters and parcels sent through the US Postal Service and other mail services such as FedEx and UPS. A USPS spokesperson said the postal service will not help states by conducting screenings to ensure abortion pills do not go to states where they’re banned.

First-class letters and parcels can only be opened with a federal search warrant, for instance. But there are many exceptions.

The Fourth Amendment does not prohibit any law enforcement agent, state or federal, from examining the outside of mail. The address, labeling, packaging or return address may raise suspicion about a package’s content and help police conduct investigations even without opening the package. The federal government, for instance, has been using this surveillance technique of “mail covers” since the late 1800s. The US Bureau of Customs and Border Protection can inspect international mail without a warrant if a package appears to contain contraband.

State and local enforcement officers can also search mail. Before a package’s mailing and after its delivery, law enforcement could apply for warrants based upon probable cause that a state law has been violated. Exceptions to the Fourth Amendment warrant requirement apply in some cases as well. For example, “suspicious” packages may trigger the exigent circumstances exception to the Fourth Amendment and permit searches. And, of course, a person can consent to a search.

In other contexts, mail is not protected by the Fourth Amendment, like if you throw the packaging out with your trash. In addition, use of private delivery companies such as FedEx, UPS and mailbox services complicate matters even more. They may reserve the right to inspect packages, and these private searches of mail and packages could fall outside Fourth Amendment protection, depending on the terms of service and other factors such as whether the search was done at the direction of law enforcement or not.

Now, this doesn’t mean that people should avoid using mail to obtain abortion pills. Given the ideology of the current administration, there seems to be little risk of federal surveillance of parcels containing abortion pills. Abortions are not banned on the federal level, and the FDA allows the mailing of abortion pills. The sheer volume of mail in this country also poses practical problems for surveillance and policing of medication abortion.

But that doesn’t mean that your mail is impervious to law enforcement scrutiny. It is important for patients getting medication abortion by mail to understand where their mail is most vulnerable to law enforcement surveillance before they order pills.

Health information privacy

Though medication abortion is safe and serious adverse effects are rare, a person may still need to seek medical assistance during or after taking abortion pills at home. At this point, the patient may arrive at a clinic or hospital where a new set of rules govern doctor-patient confidentiality.

It is important to remember that to a physician a medication abortion may present similarly to a miscarriage. In some cases, this might work in a woman’s favor as her abortion might go undetected.

But this fuzzy line could also mean that more women who suffer miscarriages are suspected of having an abortion.

What if a physician suspects that a woman has had a medication abortion in a state that has banned abortion? Can the physician call the police?

In this case, the Health Insurance Portability and Accountability Act, more commonly known as HIPAA, applies. The law is intended to protect a patient’s personal health information.

In response to Dobbs v. Jackson Women’s Health Organization, and concerned about what this reversal of Roe could mean for patients who are suspected of having an abortion in states where they are restricted, the Office for Civil Rights clarified that physicians are not permitted to disclose that an individual is suspected of ingesting medication abortion unless they are required to by law. If physicians were to disclose information, they would be violating the federal law restricting the release of medical information.

Gray areas persist, however. Despite strong statements to the contrary from medical associations, and even before Dobbs, in some jurisdictions, states may have laws that require reporting of perinatal drug use to child protective services. And, in the future, states may amend laws to require reporting of suspected abortions explicitly.

As some states push for fetal personhood, there may be situations in which a state has successfully defined a fetus as a child or person, in which case abortion could also be perceived as child abuse or attempted murder. In such cases, a physician may no longer be in violation of HIPAA for releasing patient health information in accordance with law.

The situation is more complicated in emergency rooms. Many patients who do not have adequate insurance coverage or lack a regular health provider may end up seeking care through emergency departments. In some places, hospital police or outside police agencies provide security to hospital emergency rooms.

Police also routinely come through emergency rooms as part of their role as first responders. Though they would not have automatic access to medical records, police officers have been known to enter patient rooms to investigate, ask questions, request medical providers to conduct diagnostic procedures such as blood draws, or glean information from conversations with medical providers. Police resources are, obviously, finite. It would take considerable resources for local law enforcement agencies to implement hospital patrols specifically for patients who have had abortions. But police agencies’ existing ease of access to emergency rooms and hospital personnel make it possible that emergency rooms will be another venue for patients to be surveilled and identified by police.

Many patients who arrive in emergency rooms are poor and often people of color, the same groups already disproportionately subjected to more policing and criminalization. Although HIPAA violations may be reported by anyone, the onus will often lie with the patient to report a specific violation, and disempowered patients may not realize they have privacy protections.

Protecting patient privacy

How can we address concerns of patient privacy? It must be paramount, and creative options should be explored.

Many of the mail privacy questions involve larger issues with the Fourth Amendment that cannot be easily fixed. Post-Dobbs, the landscape of abortion law presents complicated legal interjurisdictional questions that may require substantial federal interventions.

In the meantime, legal actors should be on the alert for cases involving medication abortion when police rely on evidence obtained through searches of mail. Prosecutors, judges and lawyers should scrutinize law enforcement justification for those searches. Medication abortion organizations and reproductive rights groups should provide patients with know-your-rights materials on their Fourth Amendment rights vis-à-vis their physical mail.

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    In the context of HIPAA, the Office for Civil Rights has said that physicians who report suspected abortions via medication abortion to law enforcement in a state that does not expressly mandate such reporting would be violating the law. In the context of clinical privacy, the issue may largely be physician education – ensuring that providers know they are not always obligated to respond to law enforcement nor to report suspected abortions and to ensure police presence does not undermine patient privacy.

    In this uncertain time for abortion access, we must uphold people’s rights and ability to get the care they need. Laws pertaining to privacy offer us an opportunity to protect the ability of people to get the care they need.