ABSTRACT
Several years into the US experiment with criminalizing abortion, there is little certainty about the answers to any number of basic questions about the scope and applicability of state abortion bans. For clinicians, this uncertainty, coupled with the high stakes of criminal liability, has triggered a broad-scaled retreat from the pre-Dobbs standard of care when treating pregnant patients. In the absence of carefully crafted guidelines from lawmakers, courts, or state medical boards, ad hoc approaches have displaced evidence-based best practices. The legal free-for-all when it comes to interpreting abortion bans has generated a medical free fall. Patients are being subjected to substandard or standardless care, and they are being injured.
This Article is the first to examine the ways in which the diminished quality of care provided to pregnant patients where abortion is largely illegal necessarily implicates questions of medical malpractice. We begin by documenting the ways in which abortion bans have unsettled the standard of care, leading to patient injuries that, as yet, have gone uncompensated. We examine these injuries through the lens of tort law, describing the theoretical potential of medical malpractice litigation to secure damages for injured plaintiffs while at the same time serving the “public law” function of drawing a floor beneath competent care, thereby helping clarify the otherwise uncertain standard of care. Our analysis explains why, in practice, malpractice lawsuits are unlikely to deliver on either of these promises. Furthermore, we show how malpractice litigation risks triggering harmful downstream consequences for patients, clinicians, and the medical profession as a whole. Finally, we propose several alternative strategies designed to press hospitals, health systems and professional societies into taking action to support and guide clinicians so as to maximize their ability to provide competent, ethical care within the bounds of the law.
Lindgren, Yvonne and Oberman, Michelle, Recalibrating Risk under Dobbs (October 29, 2024).
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