Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, pregnant women seeking to terminate a pregnancy, and medical providers who care for them, have found themselves increasingly subject to invasive law enforcement scrutiny in many states. For instance, while many states’ anti-abortion laws permit abortion if the pregnant person was the victim of a sexual assault, many of these laws require that physicians verify that the sexual assault was reported to law enforcement. The exception thus compels physicians to serve as handmaidens to the police.
Yet the abortion context is hardly the first or only one where policing has thrust itself into medical practice. As Teneille R. Brown observes in her new article, When Doctors Become Cops, from gender-affirming care, to prescription drug monitoring programs, to law enforcement demands for DNA samples from hospital staff, policing often encroaches on patient privacy. These intrusions generate medical mistrust that undermines both individual and public health. Moreover, this medical mistrust is likely to exacerbate inequities in population health, as police mistrust is at “record highs” and structural inequities are present in “virtually all aspects of the criminal legal system.” Brown persuasively argues that “[t]o respect patient autonomy, repair medical mistrust, and promote individual and public health,” “law enforcement and health care need to be more completely divorced from one another.”
Brown begins by demonstrating that medical mistrust is a social determinant of health that can only be worsened by injecting policing further into medical relationships. Observing that trust is “vital” to clinical care and that mistrust is a “major barrier to a strong patient-clinician relationship,” Brown cautions that medical mistrust is already a persistent concern across the modern American medical system. Under the common American fee-for-service medical model, “patients and physicians have precious little time to build trust,” as hospitals and physicians are paid “for doing things, but not for talking about whether and how to do things.”
Brown then explains how medical mistrust negatively affects health, both individual and population-wide. Medical mistrust “leads patients to refuse prescribed medications, to miss cancer screenings, to not see their doctor for regular visits, to discourage others from seeking treatment, to not share sensitive medical information with their providers, and to be less likely to comply with the prescribed treatment or health care plan.” Moreover, medical mistrust and its consequences are even worse for already marginalized communities. Medical history is replete with injustice and mistreatment based on race, sex, and other characteristics. Modern medical practice is often no better. As Brown observes, “[i]nfant mortality for Black babies is higher now than it was during the antebellum period.”
Turning to policing practices, Brown explains that there are “few legal hurdles” preventing law enforcement from accessing or using confidential patient data. Fourth Amendment law, which could act as a robust barrier to access, has instead often bent to law enforcement demands. Even if the Fourth Amendment were a hardier guardrail, it is practically triggered only by introducing medical data at trial. Prosecutors might simply avoid doing so, where possible, leaving many privacy violations unremedied. In the case of DNA identifications, police might use medical data from a suspect’s genetic relatives, rather than that from the suspect himself, in an effort to immunize their investigation from Fourth Amendment scrutiny. (In my own work, I have argued that this kind of end-run should not negate a Fourth Amendment claim.) Even where courts conclude that police conduct has violated the Fourth Amendment, moreover, courts often deny exclusion of tainted evidence anyway, based on officers’ “good faith” misunderstanding of the law.
Statutory protections for medical data, including both state privacy laws and the federal HIPAA Privacy Rule, are equally unavailing. HIPAA permits medical providers to share otherwise-protected health information with law enforcement in response to as little as an “administrative subpoena”—a statement police write themselves, without any judicial oversight. Medical providers receiving such requests are likely to cooperate with them, given messy Fourth Amendment law and the power dynamics exerted by (often armed) police.
Brown then argues that it essential to protect the “culture of medicine” from the “culture of policing” because they have very different norms and cultures regarding self-regulation, privacy, accountability, efficacy, honesty, autonomy, and trust.
With respect to self-regulation and accountability, while physicians “extensively self-regulate through governing bodies and professional associations” and “are frequently civilly sued and held accountable for malpractice,” police “rarely hold themselves accountable for the violence that they perpetrate, which is often not just careless, but intentional.” Legal doctrines like the “public duty doctrine” and qualified immunity also often shield law enforcement from liability for violence they could have prevented. By contrast, legal accountability for medical providers has expanded, following the famous Tarasoff case, often to require medical professionals to breach patient confidentiality to warn of “imminent risks to third parties.”
Similarly, with respect to privacy, while every state has codified a physician-patient privilege, there are no confidentiality norms or legal requirements for information shared with law enforcement. Police have tapped clinical laboratories, biobanks, and newborn screening programs for biological samples used to identify or confirm the identity of a criminal suspect.
With respect to efficacy, law enforcement doles out pseudo-medical interventions that are largely ineffective, substandard, and not evidence based, like administering ketamine for “excited delirium” (a highly contested diagnosis) or acting as first responders more broadly. “Treatment courts,” which divert offenders to addiction or other treatment programs overseen by courts, often rely on underregulated programs and clinics and blend punishment with disease treatment. By contrast, medical norms require evidence of safety and efficacy before treatments should be offered to patients.
Regarding honesty, modern medical ethics “universally condemn” deception, while police routinely use deception to get witnesses to cooperate or obtain evidence. Similar are differing approaches to autonomy. Medical providers seek to equip patients to make decisions consistent with the patient’s values. Meanwhile, legislatures charge law enforcement to criminally enforce moral judgments across the population, as in the context of abortion regulation or banning of gender-affirming care.
Finally, Brown returns to trust itself, showing that prescription drug monitoring programs (PDMPs), which track prescriptions and patient requests for controlled substances like opiates, “place law enforcement between a patient and their physician and can violate the trust between them.” Physicians, fearing law enforcement oversight, may under-prescribe needed pain medications, and patients may sensibly view their doctor as an extension of law enforcement when the doctor “check[s] a police database to see if the patient is telling the truth.”
Brown concludes by identifying five strategies to protect medical care from cooptation by law enforcement. First, the federal government should amend HIPAA to make it more difficult for law enforcement to obtain medical data. Second, courts should reconsider Tarasoff-style duties to warn third parties, which have had the perverse effect of “tak[ing] the very thing that makes health care special—confidentiality and patient trust—and exploit[ing] it in a way that harms not only public health, but also medical ethics.” Third, physicians must have autonomy to practice medicine in an ethical manner, something the criminalization of abortion care, for instance, has undermined even where the standard of care is clear. Fourth, medical providers would benefit from training about which disclosures the HIPAA Privacy Rule are permissive, rather than mandatory. Finally, we all must “reimagine health care as being off-limits from police.” Many social ills, currently funneled through the carceral system, would benefit from more nuanced, sensitive, and effective responses.
Brown’s article skillfully brings together three strands of law enforcement encroachment that have largely been analyzed separately to date. The first are recent state laws that functionally compel medical providers to comply with new prosecutorial demands or face criminal penalties or loss of licensure. The second consists of law enforcement efforts to tap the enormous “reservoir of evidence” held in individual medical files and biological samples. The third includes instances in which substandard medical care is dispensed by the criminal legal system directly. By weaving these entanglements into a single story, Brown broadens the narrative on medical mistrust and lends urgency to her call to build stronger, higher barriers between medicine and policing.
