On Monday, eight more women joined a massive lawsuit against the state of Texas to clarify when someone can receive emergency, potentially life-saving abortion care. All the women say ambiguities in the state’s abortion ban placed their lives at risk as they were experiencing life-threatening pregnancy complications. And Kiersten Hogan, one of the women who joined the suit this week, recounted being held for five days against her will at a religious hospital so that she wouldn’t leave to get the abortion care she needed.
Hogan’s detainment was part of an alarming phenomenon in this country: Hospitals, including non-religious hospitals, have a history of holding pregnant people experiencing complications against their will, performing unwanted procedures on them, and even colluding with law enforcement to have them detained. Hogan’s case preceded the fall of Roe v. Wade but now—as a wave of new, increasingly draconian abortion bans threaten to jail or punish doctors who provide abortion care, it seems inevitable that more cases like hers could arise.
“What’s scary is that it doesn’t have to be an anti-abortion idealogue, religious hospital,” Farah Diaz-Tello, an attorney at If/When/How who worked on Burton’s case, told Jezebel. When hospitals misinterpret abortion laws—fearing they’ll be held liable if a patient leaves their care and has an abortion elsewhere—they’re more likely to try and control their patients’ behaviors, including detaining or reporting them to the police. “Those fears are totally misplaced and misguided,” Farah Diaz-Tello said. “But the one suffering, as a result, is the patient.”
Hogan’s incident took place at the end of 2021, shortly after S.B.8—the notorious Texas “bounty hunter” law that allows people to sue anyone who may have aided and abetted an abortion—took effect, creating confusion and paranoia in hospitals about what care could and couldn’t legally be provided. “Texas law caused me to be ... detained against my will for five days and treated like a criminal all during the most traumatic and heartbreaking experience I’ve had in my life to date,” Hogan said during the Monday press conference. She also claimed she was forced to remain in the hospital until she gave birth to a stillborn fetus, and that she was constantly monitored and feared even leaving her room to use the restroom.
Lynn Paltrow, founder and executive director of Pregnancy Justice, told Jezebel she’s worked on or is familiar with numerous such cases over the last several decades—including ones in which women and pregnant people were jailed specifically to prevent them from having abortions or “harming” their fetuses, from the late 1990s to as recently as 2021.
The impacts on patients who experience this mistreatment can be significant—Hogan testified that she’s being treated for PTSD as a direct result of her traumatic isolation. Still, no policies currently exist requiring patients to be informed of their rights to leave medical facilities, and as Hogan and the other Texas women’s testimonies show, there’s deepening confusion among hospitals about how to treat pregnant patients while complying with abortion bans.
Both Paltrow and Diaz-Tello say we can look to the extensive, past cases of pregnant patients being held against their wills to understand the heightened threat that patients face, especially now, in the absence of a federal right to abortion. Long before Hogan’s experience, in 2013, a doctor reported Purvi Patel to police for experiencing a stillbirth after she allegedly took abortion pills, resulting in Patel being held as a criminal suspect and interrogated while in her hospital bed. She was incarcerated for over a year before being released in 2016.
That same year, an Oklahoma woman named Jamie Lynn Russell sought medical care as she experienced pregnancy complications, but was deemed “noncompliant” by medical staff, who called the police and labeled her “fit to incarcerate.” Russell was arrested and died behind bars due to complications from an ectopic pregnancy. Before Patel and Russell, in 2011, Rinat Dray was held in a hospital in New York against her will and forced to have an unwanted cesarean procedure. And in 2009, a Florida woman named Samantha Burton was held against her will at a hospital that had obtained a court order to keep her upon learning she was at risk of miscarriage and forced to undergo an unwanted cesarean procedure.
According to a 2022 report from If/When/How, between 2000 and 2020, nearly half of cases of individuals self-managing or helping someone self-manage an abortion that “came to the attention of law enforcement” were reported to police by health care providers.
Hospitals have no obligation or right to hold patients against their will, Paltrow clarifies, but since so many are misinformed about the extent of their liability under abortion bans—hence the current lawsuit happening in Texas—they end up taking advantage of patients being “easily intimidated by doctors and hospital staff.” Sometimes, Paltrow added, insurance coverage is even used as leverage against patients, who are told—incorrectly—that a service or procedure won’t be covered if they leave the hospital against medical advice.
Across states with abortion bans, hospitals have become plagued with confusion and anxiety, as we saw last month when a study out of Oklahoma found most hospitals couldn’t provide clear answers about the acceptable circumstances to render abortion care. Amid this confusion, some healthcare providers—like Hogan’s—seem confused about whether they can even permit patients to leave if they might obtain abortions. “If I was the hospital general counsel and I was looking at these laws, I have absolutely no idea what my physician could or could not do in any particular circumstance,” one attorney for an Oklahoma hospital told CNN.
When Roe was overturned, it “opened doors for states to create further restrictions on pregnant people in the name of fetal rights,” Diaz-Tello told Jezebel, and “determine the care or freedoms someone has based on the effects it might have on the fetus.”
The threat of legal fetal personhood only renders pregnant people more vulnerable to possible detainment and legal troubles. Today, abortion bans encourage and arguably even pressure hospitals and law enforcement agencies to do whatever they can to protect a fetus—even if this means holding pregnant people prisoner.