ABSTRACT
Across the post-Dobbs United States, reports of pregnant people arriving in hospital emergency rooms with infections as severe as sepsis, hemorrhaging or suffering from severe pregnancy complications that will only worsen with time have flooded the news. Even in states like California, which has some of the nation’s strongest abortion protections, some hospitals are still denying pregnant patients the emergency abortion care they so desperately need. Because of the lack of clarity around medical exemptions in state abortion bans and the overall chilling effect around abortion care, many patients are being denied the emergency care that they need or are being forced to wait until they are knocking on death’s door before medical staff can treat them. Some patients are even being airlifted to out-of-state hospitals for treatment elsewhere, and many who are forced to wait until their health deteriorates are taking matters into their own hands and choosing to travel out-of-state–often at great health risk – if they have the means.
Healthcare professionals who work in states with criminal abortion bans face an impossible scenario that scholars have termed the ‘double abortion bind’: the impossible choice between providing patients with an emergency, lifesaving abortion and facing potential criminal liability for violating the emergency exemptions of their state’s abortion ban statutes, and on the other hand potentially losing their patients and having exposure to medical malpractice claims for violating the standard of care owed to their patients. Litigators nationwide are fighting in state courts to clarify the medical exceptions in abortion bans. While legal scholars have explored criminal liability and the various implications of criminal abortion prohibitions on patients and medical professionals, the civil liability component – including that of potential medical malpractice lawsuits – remains murkier, in part due to a dearth of cases. However, medical professionals and attorneys hint that this is likely to change. Indeed, in October 2024, the family of Amber Thurman, a Georgia woman who died as a result of a nearly 20-hour delay in life saving abortion care, announced its plan to file a medical malpractice suit against the hospital that treated her. As more and more patients suffer and die as they wait for or are denied the emergency medical care they need, more cases will likely start to emerge.
This Note explores what role tort claims – specifically, medical malpractice suits – might play in the area of emergency abortion access. Can torts realistically provide useful legal recourse to impacted patients, and also create a new pressure point that incentivizes widening emergency abortion access? This Note analyzes whether such claims could be utilized in banned states to pressure hospital systems and policymakers to broaden emergency access to lifesaving abortion care, and suggests new avenues for research.
Isaac, Ortal, Lifesaving Care, Denied: Torts as a Tool in a Post-Dobbs World? (March 1, 2025).
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