Across the post-Dobbs United States, reports of pregnant people battling infections as severe as sepsis,[1] experiencing hemorrhaging, and suffering from other pregnancy complications in hospital emergency rooms are flooding the news.[2] 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.[3] Because of state abortion bans’ lack of clarity about medical exceptions and the overall chilling effect on 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 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, on the one hand, providing patients with emergency lifesaving abortions and facing potential criminal liability for violating their state’s abortion ban and, on the other hand, not providing emergency abortions and potentially losing their patients and facing medical malpractice claims for violating the standard of care. 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 bans for patients and medical professionals, the civil liability component—including that of medical malpractice lawsuits—remains murkier, in part due to a dearth of such cases. But as more and more patients suffer and die while waiting for emergency medical care or are denied such care altogether, civil cases are beginning to emerge.
This Note asks what role tort claims—specifically, medical malpractice suits—can play in the area of emergency abortion access. Can torts realistically provide useful legal recourse for impacted patients and apply new pressure on healthcare industry actors to widen emergency abortion access? This Note analyzes whether such claims could be used to pressure hospital systems into broadening emergency access to lifesaving abortion care and sketches one potential path forward.