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Ji Seon Song, Cops in Scrubs, 48 Fl. St. Univ. L. Rev. 861 (2021).

It’s 2022. A patient arrives at an emergency room and says she needs care for an unexpected miscarriage. During her intake procedures, a nurse, suspecting that the miscarriage was the result of a self-managed abortion, calls over a police officer there accompanying another patient. Nearly all abortions are now illegal in the state. When the police officer starts to ask questions, the patient says she wants to consult a lawyer. The nurse, now treating the patient, suggests it would be “best” if she answered the questions. So she does.

This hypothetical isn’t part of Cops in Scrubs, a recent article by Ji Seon Song, but it very well could be. As Song has written about before, the emergency room and the hospital bed are not usually thought of as places for policing, but they should be. Police routinely spend time in places where people in situations of extreme vulnerability sometimes find themselves also targets of criminal investigation. And doctors and nurses frequently act as willing partners to the police. That is a problem, as Song points out, because their positions of authority and expertise blur the lines of aid and coercion for patients who find out they are also suspects.

While constitutional criminal procedure provides a framework for ordinary policing, what about doctors and nurses? The answer is a complex web of federal and state laws that range from mandatory reporting laws to federal HIPAA obligations, not to mention tort and constitutional doctrines about liability. The overarching characteristic of these rules, as Song points out, is their “asymmetrical” guidance. Federal and state law typically tell healthcare workers what they “can and must do,” but little else.

These one-sided directives pose a problem once we find out how closely intertwined policing and healthcare can be. Although they are not trained as investigators, doctors and nurses can serve key functions in the investigative process. They collect incriminating information from patients during the intake process. They can interrogate patients, either on their own or at the request of law enforcement. They perform procedures, like blood tests and surgeries that can be both medically necessary but also potentially incriminating. Constitutional criminal procedures rules may or may not apply to these very fact specific scenarios, depending on the circumstances.

Some of the biggest problems, as Song insightfully observes, are the ones most difficult to address legally. Like the police, doctors and nurses possess a high degree of discretion. Whether observations trigger “mandatory” reporting to the police, whether to conclude that injuries are consistent with criminal activity, and other judgments are left to the healthcare professional. At the same time, there is little legal or policy guidance on the other end of the decision-making spectrum, including when countervailing interests like patient privacy and trust may suggest other actions.

Song’s analysis is particularly important in the post-Roe world. What was once routine reproductive healthcare is potentially criminal. The lack of clarity in newly enforceable criminal laws mean that decisions not just about abortion as it is conventionally understood, but whether to prescribe medications that also happen to be abortifacients, or to perform emergency procedures that might not fall with a “medical necessity” exception, will all fall to doctors and nurses. Many of them will also become perfectly willing partners to the police.

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Cite as: Elizabeth Joh, Healthcare as Policing, JOTWELL (December 6, 2022) (reviewing Ji Seon Song, Cops in Scrubs, 48 Fl. St. Univ. L. Rev. 861 (2021)), https://crim.jotwell.com/healthcare-as-policing/.