What the End of Roe v. Wade Does (and Doesn't) Mean for Your Relationship With Your Therapist

With the reversal of Roe v. Wade, discussions regarding how this will impact the lives of those with a uterus have been swirling. It goes without saying that this decision has far-reaching implications that many of us haven’t even thought of. One of these involves the ways in which changes will be made for therapists and therapy in states where trigger laws have gone into effect and abortion has effectively been outlawed. The American Counseling Association issued the following statement on June 24, 2022:

“The Supreme Court decision striking down Roe v. Wade abolishes women’s constitutional right to choose to have an abortion without the undue influence of government. This decision will trigger some state regulations, which will make abortions outright illegal and/or limiting accessibility. Various jurisdictions have proposed laws and regulations that require clinicians report clients who have sought or are seeking an abortion, as it may be considered ‘aiding and abetting.’

We recognize that the loss of access to safe, legal abortion may hinder the ability of women to participate within the workplace and society effectively and successfully. Unwanted pregnancies may affect women’s education, employment, earning prospects, and health. These effects would disproportionately fall on those who are already marginalized, those living in poverty, people of color, nonbinary, and transgender people, as well as those who live in medically underserved areas (e.g., few primary care providers, high infant mortality, high poverty).

Overturning Roe v. Wade means we can expect an increase in economic hardship and insecurity that may lead to increased stress, lower life satisfaction, decreased work productivity, increased turnover, and decreased mental well-being. Professional counselors assist clients and students facing life’s challenges such as the deeply personal decision to have an abortion, and how to access such services.

The American Counseling Association (ACA) stands with every person, counselor, and client in pursuit of mental health care and wellness. Professional counselors are being placed in an unethical position. In counseling, clients are entitled to self-determination and to make decisions in the best interest of their health and well-being. Clients should have access to high-quality professional counseling without the fear of having their confidentiality unjustly waived. This requires safeguarding the integrity and trust built in the counselor-client relationship.

Professional counselors need to continue to practice ethically and obtain a legal consultation to determine their duty to confidentiality and privacy versus the conflict either in Roe v. Wade or the restrictions their state has put in place. Professional counselors may request an opinion from their State Attorney General who can give an official interpretation of the law.”

Obviously, this spawned a bit of a panic in the mental health community as to what liability, if any, a therapist might incur should a client disclose the intent to obtain an abortion. Many rumors circulated that therapists would be required to report their clients under “Duty to Warn” laws, which are normally reserved for the protection of children or the elderly where abuse has been disclosed. While not every state has these requirements, even in those where they aren’t mandatory, therapists may act so as to avoid any potential liability, and this is where the slippery slope exists that has therapists concerned.

As per the statement by the American Counseling Association, I attempted to reach out to the Attorney General’s offices of as many states where abortion has effectively been outlawed to find out what, if any, liability or requirements are in place for mental health professionals where abortion is concerned. While most of them had secretaries who took messages from me that presumably ended up in a permanent file known as the dumpster, the handful of states where I actually spoke to someone — namely Oklahoma, Missouri, and Texas — told me that they had no information at this time and that individual mental health professionals should consult with their private attorneys regarding any potential liability. As for consumers, there was no comment or guidance available.

The Texas office referred me to the Law Library for more detailed information. I did contact them and was offered the following statement:

“The language of the law itself is not specific as to abortion. It states that “[a] professional may disclose confidential information only … to medical, mental health, or law enforcement personnel if the professional determines that there is a probability of imminent physical injury by the patient to the patient or others or there is a probability of immediate mental or emotional injury to the patient.

It does not go into detail about what “imminent physical injury” would mean in terms of abortion. In cases like this where the law is vague or unclear with regard to a specific topic, it usually needs to be interpreted by the courts. The Texas Attorney General could also issue an opinion stating how the law should be interpreted and applied. Until then, its precise meaning and application are unclear.”

She did include that in Texas this law is “permissive” rather than “mandatory,” meaning the mental health professional “may” report rather than “shall” or “must” report. She then suggested I contact the state behavioral health licensing board, which I did. The Texas board stated that there is no such Duty to Warn “at this time,” which leads me to believe that this may change in the future. Other state boards did not respond to my inquiries with the exception of the state of Oklahoma board which stated “The Board does not have any additional information to provide at this time.”

So where does that leave therapists, and more importantly clients of therapy in states where abortion is illegal? I’d say it’s very much a gray area right now. Since there is no precedent yet for how these cases will be pursued if and when they occur, medical providers will be operating in uncharted waters. As the Honorable Judge Rosemarie Aquilina of the state of Michigan outlined in an op-ed for Medscape:

“Doctors in some states will be forced to report or even testify against pregnant patients who have abortions or even who have had miscarriages. The cost of malpractice insurance will increase for physicians who treat any woman during their childbearing years…Will I be required to sign probable cause search warrants for information that has been protected under HIPAA, the Health Insurance Portability and Accountability Act of 1996?”

And that is the primary thing that clients should be acutely aware of. If you disclose your intent to obtain an abortion to your therapist, even if they are not required by Duty to Warn to report you, should you later get turned in and your medical records subpoenaed by a court of law, anything that is included by your therapist on your progress notes or chart can and will be used against you in a court of law. The ramifications of this cannot be overstated.

This leaves patients and therapists with a couple of options. For a patient, you can opt to withhold any discussion regarding your reproductive health from your therapist so as not to potentially incriminate yourself in the future. Or you can hope that you will not get caught and therefore this will be a non-issue.

For a therapist, this will be contingent upon whether you work for an agency or in private practice. I have heard of some therapists stating that the agency they work for requires them to report clients who intend to seek an abortion. I’m unclear as to the legality of this being mandated, but it’s something a client should be aware of. And if a therapist is in private practice, they may simply choose to not include any information regarding a patient discussing reproductive health at the risk of having to violate the patient’s privacy should they get caught. None of these scenarios are particularly appealing to either the therapist or the patient.

The bottom line:

While therapists don’t often like to discuss their personal political or religious beliefs with their clients, this is a situation where an open and honest dialogue needs to be had between a patient and therapist. You have the right to know where your therapist stands on this issue if you are going to feel safe in therapy. The entire underlying tenet of why therapy works is the ability of a patient to be completely honest with their provider. It’s the foundation of a strong therapeutic alliance. If you are having to police what you share for fear of incrimination, you can’t possibly feel safe enough to do any kind of meaningful therapeutic work with that clinician. Your therapist should have a clear answer ready for you regarding their belief and how they intend to proceed in the future. If they refuse to answer or cannot provide you a well-thought-out plan of action, I recommend searching for another practitioner.

Even though I am no longer able to procreate due to having had a hysterectomy because of endometriosis, I still had an open and honest conversation with my therapist regarding the subject. It was important for me as a human being with a uterus who loves and cares about others who have had or may need abortions to be on the same page with her. This topic also indicates a fundamental viewpoint regarding bodily autonomy, basic human rights, and the integrity of the patient-therapist relationship that influences every aspect of my healing from trauma, particularly sexual abuse.

Knowing that my therapist is on my team and will fight for my humanity is critical for my continued trust in the therapeutic process, and it should be for you as well.