reproductive justice

When Jobs Becomes Illegal: Workplace Challenges for Abortion and Gender-Affirming Care Providers

Ellie Samuels

Ellie Samuels is a student at Harvard Law School.

Last month, the Alabama Supreme Court ruled that frozen embryos are people. Three In Vitro Fertilization (IVF) clinics across the state are closing their doors in response, including a clinic at Alabama’s largest hospital. A spokesperson for one of the clinics explained that while saddened by the detriment to patients, they are worried that “our physicians could be prosecuted criminally or face punitive damages for following the standard of care for IVF treatments.”

The fear that IVF providers are facing echoes across the reproductive and sexual healthcare world. In states that are banning and restricting gender-affirming care and reproductive freedom, workers risk lawsuits or even imprisonment for providing essential and often life-saving healthcare. The inevitable result is a growing labor shortage in states with bans and provider burnout across the country. As some medical workers grapple with their jobs becoming illegal and those in permissive states shoulder more of the burden of this life-saving work, workers are demanding more of their employers and states. 

Legal Hostility and Uncertainty

The current legal landscape creates steep risks for healthcare workers just trying to do their jobs. Vague, punitive laws instill fear and create chilling ambiguity. In Texas, for example, the state’s abortion ban ostensibly has a medical exemption. However, the standards and contours are unclear, with potential repercussions as severe as life in prison, leading hospitals to routinely force women to wait until they are at death’s door before performing an abortion.

These liability-avoiding tactics endanger patients’ lives and underscore the profoundly challenging circumstances facing healthcare workers. As J. David Goodman at the New York Times explains, an abortion provider’s options are often: “Go ahead with the procedure and risk felony prosecution, or wait until a woman’s health deteriorates to the point that no one would question the medical need.” Advocates are pushing Texas to clarify the law, while doctors have been pushing the state medical board to develop better guidance, to no avail.

The same legal complications exist for gender-affirming care. The American Association of Medical Colleges (AAMC) explains that gender-affirming care bans “can be confusing and can require extensive — and rapid — contact [with] lawyers to understand and avoid breaching them.” The stakes for error are high: providing gender-affirming care can result in a felony in five states; there are restrictions in over twenty states, particularly on trans youth care. Gender-affirming care providers describe living in fear of “secret shoppers,” people masquerading as gender-affirming patients to snitch on medical workers breaking the law. 

Legal restrictions and complexities inevitably create staffing shortages, particularly in the most hostile states. A rural Utah abortion clinic closed due to staffing shortages this summer. According to surveys, 63% of OB-GYNs said they likely would not work in anti-abortion states. There was a 10.5% decrease in applications for OB-GYN residencies in states with complete bans from 2022 to 2023. CBS reported that in the aftermath of Idaho’s abortion ban, “more than half of those who specialize in high-risk pregnancies expected to leave the state by the end of the year.”  In the entire city of San Antonio (population 1.5 million), there was only one doctor in 2023 willing to provide gender-affirming care to trans youths. The Texas Tribune reported that trans youths in Texas have trouble even finding pediatricians willing to provide routine physicals. Meanwhile, workers in pro-abortion and LGBTQ+ friendly states are picking up the slack—with patients regularly journeying across the country to receive care. In the same period in 2023 compared to 2020, for example, states like Illinois, California, and New York provided tens of thousands more abortions.

Organizing for Change

A hostile legal landscape isn’t the only problem. Across the country, providers contend with the constant threat of harassment and violence. AAMC describes a slew of social media attacks and billboards with doctors’ faces on them after a state enacted a gender-affirming care ban. According to the National Abortion Federation (NAF), in the year following Dobbs, abortion provider reports of stalking rose 600%, clinic invasions 129%, and assaults 128%. In 2023, a woman poured gasoline on and then lit on fire one of Wyoming’s two abortion clinics.

Thankfully, reproductive and sexual healthcare workers are organizing. In October, nearly 450 workers at Fenway Health in Boston voted to unionize. Fenway is one of the largest LGBTQ+ health care providers in Massachusetts, serving many patients who travel from anti-trans states to receive their care. The Fenway Union statement celebrated the chance to advocate for LGBTQ+ patients and better working conditions simultaneously. At least 8 abortion clinics have voted to unionize since Dobbs, including nearly 300 employees at a Planned Parenthood affiliate in California and a Wisconsin affiliate in January 2024. Planned Parenthood of Pacific Southwest is pushing for raised wages for entry-level staff, who have extremely high turnover rates. To aid these efforts, the organization Repro Jobs, run anonymously by workers in the reproductive justice movement, administers a $200,000 worker aid fund for people who lost their jobs due to Dobbs, a salary database to promote pay transparency, and an instruction manual for unionizing a workplace.

Organizers have experienced some roadblocks. One member of the bargaining unit at Guttmacher, a reproductive health research NGO, described the “exhausting” experience of  being “engaged in both the fight for a fair first contract and the fight for reproductive rights.” In 2018, NAF initially fought the formation of a union, while a Colorado Planned Parenthood turned to the Trump administration’s NLRB to challenge the organizers’ efforts. After the NAF union ultimately prevailed, one organizer expressed relief at being able to approach her work “without worrying as much about how we can afford our family’s medical care, how we’ll make rent, what we will do if we need an abortion or gender-affirming care and live in a hostile state.”

Protecting Providers

Reproductive and gender-affirming healthcare providers are part of a larger trend of medical worker unionization across the country. On top of ubiquitous healthcare worker burnout, reproductive health and gender-affirming care providers have some of the most legally complex and emotionally taxing jobs in the country.

Broad legalization of essential healthcare services is needed to protect workers and patients. Until then, promising measures exist to improve workers’ lives. Union organizing empowers these essential workers to fight for better healthcare, pay, and working conditions, such as better staffing ratios. Local and national reproductive and sexual healthcare organizations should immediately recognize any staff organizing efforts, and work with unions to balance the needs of workers and patients. In abortion and LGBTQ+ friendly states, there is new and proposed legislation to support and develop reproductive and sexual health provider training programs.

Unfortunately, these kinds of organizing and legislative efforts are mostly possible in states where abortion and gender-affirming care are already protected. Protecting providers in states with bans is also essential.  Advocates can push for courts and legislatures to clarify restrictions; the Center for Reproductive Rights has advocated for courts to adopt a “good faith” standard for assessing a doctor’s decision to grant a medical exemption. National organizations, legislatures, and unions like SEIU can and should support workers forced to relocate from hostile states. Gender-affirming care and abortion providers save lives—they deserve full and fair labor rights and employment protections.

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