The Impact of Post-Dobbs Abortion Bans on Prenatal Tort Claims

Aviva K. Diamond* November, 2023

In June 2022, the Supreme Court revoked Americans’ fundamental right to abortion in Dobbs v. Jackson Women’s Health Organization. However, the Court said nothing about how its decision would impact tort claims related to reproductive care. Many states have since adopted near-total or early-gestational-age abortion bans, which has not only diminished access to reproductive care, but has also incidentally impaired the ability of plaintiffs to bring long-recognized prenatal tort claims. Prenatal tort claims—wrongful pregnancy, birth, and life—allow victims to recover when a medical professional negligently performs reproductive or prenatal care. This Note identifies the impact that post-Dobbs abortion bans and restrictions will have on each type of prenatal tort claim. This Note explains the purposes of prenatal tort claims and supplies an up-to-date, nationwide survey of the recognition of these claims. It then provides empirical evidence demonstrating the politicized nature of prenatal tort claims and analyzes the ways that abortion bans will impact them. Finally, it outlines potential constitutional, tort law, and nonlegal solutions to Dobbs’s impact on prenatal tort claims.

Introduction

In June 2022, the Supreme Court in Dobbs v. Jackson Women’s Health Organization allowed states to pass complete and near-complete bans on abortion for the first time since before Roe v. Wade.¹ Fourteen states now have such bans in place.² The Dobbs decision also cleared the way for more severe abortion restrictions than existed under the Roe regime.³ By overruling nearly fifty years of precedent, Dobbs has fundamentally changed constitutional law. But few have commented on how Dobbs will impact tort law and, specifically, prenatal tort claims.⁴

In the decades following Roe, state courts began to widely recognize certain prenatal tort claims.⁵ These claims address situations where a medical professional⁶ fails to satisfy their duty of care by act or omission when providing genetic counseling or prenatal testing, administering contraception, or diagnosing infertility.⁷ As medical malpractice actions, prenatal tort claims are governed primarily by state common law principles.⁸ To prevail, plaintiffs must prove the same general elements of most medical malpractice claims: (1) the existence of a patient-physician relationship; (2) a violation of the standard of care; (3) that the failure to meet the standard of care was a substantial factor in causing the damage; and (4) actual damage.⁹ In federal court, plaintiffs can bring suit under the Federal Tort Claims Act, but the claim remains governed by the same state law principles.¹⁰

Prenatal torts give rise to three distinct causes of action: wrongful pregnancy, wrongful birth, and wrongful life.¹¹ Wrongful pregnancy is an action that parents bring on their own behalf to recover damages from the birth of a nondisabled child who, but for the defendant’s negligence, would not have been born.¹² Cases often arise from negligently performed sterilization procedures¹³ or abortions,¹⁴ or incorrectly administered¹⁵ or inserted¹⁶ birth control. Wrongful birth is an action by parents on their own behalf who suffered damages as a result of the birth of a child experiencing disability who, but for the negligence of the defendant, would not have been born, because had the parents known about the disability (or likelihood of disability) in time, they would have obtained an abortion or chosen not to conceive in the first place.¹⁷ Typical wrongful birth cases involve a medical professional’s failure to discover¹⁸ or diagnose¹⁹ a medical condition in the parents²⁰ or the fetus²¹ through prenatal testing. Wrongful life is an action brought by a minor child experiencing disability who argues that, but for the defendant’s negligence, they would not have been born.²² While a wrongful life suit may seem redundant, it bears the advantage of allowing the child to sue for lifetime expenses, while wrongful pregnancy and birth claims only permit the parents to recover until their child’s age of majority.²³

All three types of prenatal tort claims are hotly contested,²⁴ politicized, and intertwined with abortion.²⁵ Courts have long grappled with prenatal tort claims²⁶ and whether to recognize them.²⁷ Most states do not recognize all prenatal tort claims, some do not recognize any, and many limit their damages.²⁸ Although some scholars consider prenatal tort claims altogether inadequate and unsuccessful,²⁹ such characterizations are extreme. These claims sometimes enable plaintiffs to recover substantial damages for reproductive wrongs that would otherwise go unaddressed.³⁰ But the case law or published literature has not yet confronted the impacts of abortion bans on prenatal tort actions—a new wrinkle for these already controversial claims.

Another reason prenatal tort claims are controversial is because they regularly raise disability issues, so proper language is important.³¹ The medical profession invented the label “defective,” now considered derogatory, to describe a fetus that deviates from developmental expectations.³² Many courts have used “defective”³³ or other language with negative connotations like “retarded,”³⁴ “deformed,”³⁵ and “impaired” to describe children experiencing disability in prenatal tort cases.³⁶ In an effort to avoid the stigmatization that these derogatory words cause, this Note will use the language “people experiencing disability.”³⁷ In addition, this Note will use “nondisabled” to describe individuals who do not experience disability. It is also worth clarifying that the word “wrongful” in wrongful birth and wrongful life refers to the wrongfulness of the physician’s negligence³⁸ and does not mean to imply that there is something wrong with a child who experiences disability.

This Note argues that prenatal tort claims have been seriously affected by abortion bans in at least some states. Part I is devoted to the background complexities of prenatal torts. It outlines justifications for and criticisms of prenatal tort claims and provides an updated national survey of state law regarding prenatal tort claim recognition. Part II provides empirical evidence on the politicization of prenatal tort claims and then analyzes the impact of abortion bans on each of the three types of actions. Part III suggests potential solutions to Dobbs’s impact on prenatal torts, including the constitutional right to interstate travel, access to medication abortion, and a reframing of the injury at issue, all of which would strengthen prenatal tort claims brought in states with near-total or early-gestational-age abortion bans.

I. Background: Justifications for Prenatal Tort Claims, Criticisms, and Where State Law Stands

This Part details how prenatal tort claims accomplish tort law’s fundamental goals of compensating victims and deterring tortious conduct,³⁹ and how they further gender equality and reproductive rights. It acknowledges that prenatal tort suits have often contributed to stigmatization of the disability community. With some adjustments, these claims, and tort law itself, can better serve people who experience disability. This Part also provides an up-to-date, nationwide survey of U.S. jurisdictions, which shows that before Dobbs, state courts and legislatures generally recognized wrongful pregnancy claims, about half recognized wrongful birth claims, and few recognized wrongful life claims.

A. Compensating Victims

Plaintiffs in prenatal tort cases deserve compensation. They often need it. In these cases, the plaintiffs have either an unplanned child as a result of wrongful pregnancy, or a child with unexpected medical needs due to wrongful birth. The annual cost of raising one child in the United States is about $17,000 according to an analysis of U.S. Department of Agriculture data from the 1990s to 2017.⁴⁰ In many wrongful pregnancy cases, the plaintiff did not want a child—hence the vasectomy, sterilization, or abortion at issue⁴¹—so they may be less financially prepared for one. In addition, approximately 49% of people who seek abortions are poor, 75% are low-income, and 59% already have children.⁴² In wrongful birth and life cases, child-rearing expenses can be magnified by the child’s unique medical needs. Because the United States does not have universal healthcare, plaintiffs may be uninsured or underinsured, and costs of medical care can be prohibitively high.⁴³ Pregnancy and child rearing are demanding and time consuming.⁴⁴ They come with opportunity costs and can limit parents’ educational and professional prospects for nine months or more.⁴⁵ Plus, the parent victim of a prenatal tort may already have other dependent children.⁴⁶ For example, in the Texas case of Crawford v. Kirk, plaintiff Tammy Crawford already had three children and underwent a sterilization procedure for financial reasons.⁴⁷ Crawford’s doctor negligently performed the procedure, and Crawford later gave birth to twins after a complicated pregnancy that left her hospitalized for over a month.⁴⁸

Compensation from prenatal tort suits also redresses noneconomic injuries:

Reproductive negligence inflicts a distinct and substantial injury, however, that goes beyond any bodily intrusion or emotional distress. The harm is being robbed of the ability to determine the conditions under which to procreate. Determinations about having children tend more than most decisions in life to shape who people are, what they do, and how they want to be remembered. . . . That is why the wrongful frustration of reproductive plans disrupts personal and professional lives in predictable and dramatic ways.⁴⁹

Parenthood or additional children can cause a family psychological and physical harm resulting from childbirth, child care, or having an unwanted child.⁵⁰ If the child experiences disability, the child may endure chronic pain—suffering that the rest of the family, in turn, must witness.⁵¹ For the child who experiences disability, the compensation from a prenatal tort claim also means they can grow up in a family freed from the emotional burden of financial uncertainty.⁵²

B. Deterring Misconduct

There is a great need to deter negligence in reproductive care and prenatal genetic testing.⁵³ Patients seeking these services are in no position to bargain or insure against bad outcomes.⁵⁴ In addition, these forms of medical care are poorly regulated and lack effective self-policing.⁵⁵

Negligence law is often considered a means to deter careless behavior,⁵⁶ and prenatal tort liability may facilitate such deterrence.⁵⁷ In theory, the costs of litigation encourage health systems to invest in safety precautions.⁵⁸ There may also be some deterrent effects on individual medical professionals who do not wish to spend time defending a lawsuit,⁵⁹ suffer reputational harm,⁶⁰ or lose their jobs.⁶¹ Consider the Virginia wrongful pregnancy case of Miller v. Johnson, where plaintiff Laura Johnson underwent an abortion and sterilization procedure and, after the fact, a pathology report showed that the abortion was unsuccessful.⁶² However, the report was filed without ever being reviewed by a physician, so Johnson did not learn that she was still pregnant until months later, when it was too late to undergo another abortion.⁶³ Due to an imbalance of medical knowledge, Johnson could not personally review the pathology report or check whether her physician had done so. At the time, Virginia had yet to recognize wrongful pregnancy actions.⁶⁴ If it had, there would have been a financial incentive for the defendant provider to institute precautions ensuring that physicians did not forget to consult pathology reports. The same deterrence rationale that incentivizes safety precautions may also encourage communication-and-resolution programs within health systems, where health care providers disclose unanticipated outcomes to patients and proactively seek resolutions such as an explanation, apology, and/or offer of compensation.⁶⁵ These programs improve patient care but are not universally available.⁶⁶

Empirical evidence of medical error deterrence is hard to find,⁶⁷ and some believe that its benefits are minimal.⁶⁸ The medical community’s prevailing approach to medical errors is to “deny and defend”: deny that a mistake has occurred and vigorously defend against malpractice claims.⁶⁹ Furthermore, medical malpractice insurance, which most physicians carry,⁷⁰ blunts the force of deterrence.⁷¹ The negligent physician may not even experience an increase in insurance premiums.⁷² These flaws are not unique to prenatal tort claims, but rather are endemic to medical malpractice law.⁷³ Still, if prenatal tort liability provides even some deterrence, then it is worth maintaining; otherwise, patients who require reproductive or prenatal care would be less protected than other patients.

C. Uplifting Reproductive Rights and Gender Equality

In a world with reproductive rights, prenatal tort claims enforce them. These claims stand for the proposition that people capable of pregnancy should not be denied the right to make a decision to have an abortion based on facts that could have and should have been disclosed,⁷⁴ such as the person’s pregnancy status or the fetus’s health condition. Prenatal tort liability sends a signal to medical professionals and society at large that reproductive rights must be respected in a robust manner. Prenatal tort actions also encourage and protect procreation itself by giving people a civil remedy when a medical professional’s negligence thwarts reproduction.⁷⁵

Women are disproportionately harmed by reproductive negligence.⁷⁶ In wrongful pregnancy cases, women (or any people capable of pregnancy) are the ones to carry the unwanted pregnancy and undergo the birth. There are no statistics specific to families that have been victims of prenatal torts, but in general, mothers are far more likely to do care work than fathers.⁷⁷ Through prenatal tort claims, tort law can be a force for creating equality.⁷⁸ Otherwise, women’s suffering may become invisible and their hardships may go unaddressed.⁷⁹

The availability of prenatal tort claims also benefits men. Men are not “‘distant,’ ‘vicarious,’ or ‘peripheral’ actors in the reproductive process”; they suffer real harms.⁸⁰ Men have access to pregnancy-related medical malpractice claims as well, including failed vasectomy claims.⁸¹ In other cases, a man’s sperm may have been used without his consent, forcing him into parenthood.⁸² Fathers have a legal obligation to support their children, so without prenatal tort liability, they may be required to pay one half or more of the child’s costs.⁸³ Prenatal tort claims can provide male victims with resources to pay for their unexpected child.

D. Centering Disability Justice⁸⁴

Without question, prenatal tort claims have stigmatized the disability community.⁸⁵ These claims often assume that disability is undesirable.⁸⁶ Some courts have declined to recognize wrongful birth and life claims because of the risks this assumption poses.⁸⁷ The disability community is large and diverse,⁸⁸ and people within it have complex and differing views on prenatal tort suits. Disability advocates have argued both for⁸⁹ and against⁹⁰ prenatal tort claims. This discord may be in part because wrongful birth and life claims are connected to prenatal testing and abortion—both already controversial issues within the disability community.⁹¹ Prenatal tort claims can and must be reformed to lessen their negative impact on the disability community. One solution is to change the language of tort law more generally in approaching disability.⁹²

1. Arguments in Favor of Prenatal Tort Claims for People Experiencing Disability

Wrongful birth and life claims can provide people experiencing disability with compensation that, for some, is much needed. In these cases, the real beneficiary of the recovery is the child, as the award will be used for their healthcare and other expenses⁹³:

Given the limitations of the American health-care system, a political climate characterized by efforts to reduce access to health care, and the expense of raising a child with special medical needs, the wrongful birth claim remains an important means of securing resources for [parents] who have a child with a disability following inadequate prenatal care.⁹⁴

Even prenatal tort claim critics acknowledge the “compelling” need to compensate people experiencing disability so they can secure necessary services.⁹⁵

When people who experience disability are themselves the victims of a prenatal tort, they may experience more severe harm than nondisabled people. Consider a wrongful pregnancy case where plaintiff Kay Bushman was a survivor of polio and, when she became pregnant as the result of a failed vasectomy, became suicidal.⁹⁶ Childbirth was extremely difficult for her: she suffered greatly through her four previous deliveries due to spine and pelvis conditions.⁹⁷ Prenatal torts provide a means of redressing acute suffering like Bushman’s.

Children experiencing disability benefit from their parents having time to prepare for them. Properly executed prenatal testing gives future parents the chance to “prepare their home or heart” for a baby experiencing disability that may need special care or have an increased likelihood of fetal or neonatal death.⁹⁸ Advanced notice enables parents to secure time-sensitive medical or surgical treatment that the fetus or child may need.⁹⁹ To the extent that potential tort liability incentivizes doctors to provide better care, prenatal tort claims may benefit the child who experiences disability.¹⁰⁰

Prenatal tort claims give pregnant people the opportunity to consider whether to have an abortion. In certain circumstances, some parents may feel that an abortion is the compassionate choice. In Emily Rapp’s recounting of her child’s life with Tay-Sachs disease—an experience that includes daily seizures; the inability to swallow, move, speak, or see; and difficulty breathing—she writes of her love for her son.¹⁰¹ But, she also believes “it would have been an act of love to abort him, knowing that his life would be primarily one of intense suffering.”¹⁰² Rapp identifies as a person experiencing disability herself and loves her life, yet she wishes that her child would not suffer.¹⁰³ Another mother, Lyndsay Werking-Yip, wrote of her decision to have an abortion even though she is pro-life: “Our child would not be given a life of pain and suffering. . . . [Her diagnosis] was incompatible with a fulfilling life.”¹⁰⁴ Prenatal tort claims encourage doctors to allow their patients to make an informed choice about this important decision to prevent unnecessary suffering.

2. Disability Arguments Against Prenatal Torts, and Necessary Reforms

Despite the aforementioned benefits, prenatal tort claims are also harmful to the disability community. The language underlying prenatal tort claims, and tort law as a whole, can be reformed to mitigate this harm.

Professor Wendy Hensel has argued that wrongful birth and life actions should not be recognized because their benefits are outweighed by the negative impact on the psychological wellbeing of people experiencing disability and the societal image of disability.¹⁰⁵ At the root of her concerns is that these tort claims convey the message that the child experiencing disability is an “injury,” while the actual injury is the deprivation of the parent’s choice whether or not to have an abortion or their ability to prepare for their child.¹⁰⁶ She concludes that the provided compensation is “benevolent paternalism . . . in which the nondisabled ‘assume the role of protectors,’” which comes at a cost to the disability community¹⁰⁷:

Wrongful birth and life actions do not offer compensation to all individuals who suffer as a result of a defendant’s negligence, nor do they compensate all individuals with disabilities in need of relief. Instead, assistance is provided only to those willing to openly disavow their self-worth and dignity. Children must testify that they should have been aborted by their mothers. Mothers must testify that they would have aborted their children or prevented conception if only the defendant had presented them the opportunity. No matter how compelling the need, or how gross the negligence involved, no assistance will be extended to the family who would have chosen to embrace or simply accept the impaired child prior to his birth.¹⁰⁸

These concerns are warranted—the current process of litigating a wrongful birth or life claim requires that parents demean their children experiencing disability or that the child demean themself.

While Professor Hensel attributes these flaws to wrongful birth and life claims alone, they are problems of tort law generally.¹⁰⁹ Tort litigation requires people experiencing disability to present themselves in an often-tragic way that does not reflect how they see themselves.¹¹⁰ These cases may also be hyperfocused on their bodies.¹¹¹ Tort law fosters stereotypes and forces plaintiffs experiencing disability to see themselves in harmful ways.¹¹² Because this is a broader tort law issue, Professor Hensel’s suggestion to eliminate wrongful birth and life claims misses the real problem.

A better solution is to change how tort law generally approaches disability. Lawyers and judges should consider parties’ disabilities in more nuanced ways that accurately reflect their lived experiences.¹¹³ In prenatal tort cases specifically, courts must “consider the burdens that accompany all parenting” and “emphasize that the ‘harm’ of disability varies greatly depending on biological, familial, financial, attitudinal, and social factors.”¹¹⁴ This means that courts should stop making demeaning comments like, “We recognize the extremely severe nature of Child’s impairment. It is difficult even to begin to describe the nature of Child’s loss . . . .”¹¹⁵ Courts must also not assume that disability connotes misfortune while a nondisabled child is a “blessing.”¹¹⁶ Disability status is not an accurate predictor of harm: countless people who experience disability enjoy fulfilling, happy lives—and many nondisabled people experience the opposite.¹¹⁷ At the point in time of the prenatal tort suit, the court is unable to know or even predict the ultimate experience of the child; it can only consider their diagnosis.¹¹⁸

Changes in language and approach would reduce the negative impact that prenatal tort claims currently have on individuals experiencing disability. Disabilities should no longer be portrayed as strictly tragic. The language used in litigation and court decisions should focus instead on the defendant’s tortious conduct.¹¹⁹ These changes would require the cooperation of many stakeholders and may not happen overnight, but judicial training¹²⁰ and filing requirements¹²¹ concerning disability language are effective steps worth pushing for. While no solution can fully cure the harm that these tort suits have caused the disability community, this proposed change would be a step in the right direction toward permitting equitable relief for people experiencing disability.

E. State Survey Results

States have varied their approaches to prenatal tort claims. Many state courts and legislatures have embraced the aforementioned benefits of prenatal tort claims. Table 1 provides an up-to-date survey of the differing recognition of these claims. This new survey was necessary as existing tables are out of date,¹²² incomplete,¹²³ incorrect,¹²⁴ or confuse prenatal tort terminology.¹²⁵ Other scholars have quoted data without verifying it,¹²⁶ thereby perpetuating erroneous information, or have failed to provide a citation for their figures.¹²⁷

To summarize the survey: of the fifty states and the District of Columbia, thirty-seven states recognize wrongful pregnancy claims, twenty-three states and the District of Columbia allow wrongful birth claims, and four allow wrongful life claims. Conversely, five states and the District of Columbia prohibit wrongful pregnancy claims, sixteen prohibit wrongful birth claims, and thirty-seven prohibit wrongful life claims. Eight states have not yet weighed in on wrongful pregnancy claims, eleven have not decided on wrongful birth claims, and forty states and the District of Columbia have not addressed wrongful life claims. The most common combinations are for states to permit wrongful birth but not wrongful life claims (eighteen states),¹²⁸ allow only wrongful pregnancy claims (sixteen states),¹²⁹ outlaw all prenatal torts (four states),¹³⁰ authorize all three (three states),¹³¹ or remain silent on all three (four states).¹³² Wrongful pregnancy is the most accepted of the prenatal tort actions, possibly because it avoids the complicated issue of disability and is not explicitly tied to abortion, whereas wrongful birth and life claims require the recognition of a right to abortion.¹³³

Table-1-8 Download

II. How Dobbs Changes the Landscape for Prenatal Tort Claims

This Part will outline the historical connection between prenatal tort claims and abortion rights, as well as predict the effect of Dobbs on the future of these claims. Prenatal tort claims are politicized, with liberal states tending to recognize them and conservative states tending not to. Many conservative states already banned some or all prenatal torts prior to Dobbs, so abortion bans in these states do not affect these tort claims. But in states that have prenatal tort claims, abortion bans make it more difficult for plaintiffs to prove causation and injury and will reinvigorate public policy arguments against these tort claims. Bans may also invalidate prenatal tort precedent that is based on Roe’s fundamental right to abortion.

A. Connection Between Prenatal Tort Claims and Abortion

The right to abortion is central to wrongful birth and life claims, and sometimes to wrongful pregnancy claims.¹³⁴ Abortion arises in these claims in one of two contexts:

(1) The alleged failure of a physician to effect a successful abortion, resulting in the birth of an unwanted or unhealthy child [i.e., wrongful pregnancy]; or

(2) The alleged failure of a physician to diagnose either the fact of pregnancy or probable birth defects in a timely manner, resulting in foreclosure of the parents’ option to abort [i.e., wrongful birth or life].¹³⁵

The constitutional right to an abortion was necessary for many prenatal tort suits to succeed. Wrongful birth and wrongful life actions only gained traction after 1973, when the Supreme Court established the right to a first-trimester abortion.¹³⁶ While Roe did not cause every state to recognize prenatal tort claims,¹³⁷ some state courts relied on Roe in their decisions legalizing such actions.¹³⁸ Roe did not directly speak to prenatal tort claims,¹³⁹ but some courts interpreted it to mean that physicians had a duty to give patients complete information about the risks of carrying a given pregnancy to term and to use medical technology in service of their patients’ choices.¹⁴⁰

Judges and state legislatures perceive prenatal tort claims as related to abortion. As Judge Richard J. Israel, perhaps the only judge to say it explicitly, put it:¹⁴¹

Make no mistake. These cases are not about birth, or wrongfulness, or negligence, or common law. They are about abortion. For those who can accept that abortion is a legal choice for pregnant parents at pertinent times, there is no difficulty in finding room in the common law tort of negligence for claims of wrongful birth. For those who cannot accept that premise, no one should ever be compensated for injury just because the choice of abortion has been thwarted. For them, the tort of negligence will not fit for whatever reasons come to hand, whether it be lack of injury to a foreseeable plaintiff, or lack of proximate cause, or the novelty of the claim.¹⁴²

Wrongful birth claims produced sharply differing judicial opinions that tended to adopt either “pro-choice” or “pro-life” perspectives on abortion.¹⁴³ For example, a federal district court in South Carolina refused to allow wrongful life claims under state law due to state-specific policy considerations including “the preciousness and sanctity of human life.”¹⁴⁴ State prenatal tort statutes are also politicized and ideological. In Utah, the statute banning wrongful birth and life claims, entitled “Right to life,” states, “[I]t is the public policy of this state to encourage all persons to respect the right to life of all other persons . . . including . . . all unborn persons,”¹⁴⁵ suggesting that prenatal tort claims would somehow infringe the right to life of fetuses. The Pennsylvania statute that bans wrongful birth and life actions states, “A person shall be deemed to be conceived at the moment of fertilization,”¹⁴⁶ a tenet of pro-life beliefs.¹⁴⁷

As shown in Table 2, a state’s political leanings and views on abortion play a role in its decision to recognize or ban prenatal tort claims. Democratic states are more likely to recognize at least one prenatal tort claim, and included among these are the only states to recognize all three.¹⁴⁸ Republican states are more likely to ban all three types of claims. “Split” states, where one party controls the legislature and another controls the governorship (or where the state voted for the opposite presidential candidate in 2020), tend to lie somewhere in between. Similarly, states with legal abortion tend to recognize more prenatal tort claims than states with gestational limits, abortion bans, or an attempted abortion ban that was blocked by a state court. The political leanings of a state are not a perfect indicator of a state’s view of prenatal tort claims; six red states recognize two of three.¹⁴⁹ Other influences may be at play, or the state’s political composition may have changed over time. Even though a legislature could repeal, amend, or replace an earlier prenatal tort statute that it did not agree with, or overturn a conflicting judicial decision by statute, legislative wheels turn slowly.

Table-2-4 Download

The correlation between political leanings, positions on abortion, and the tendency to recognize prenatal tort claims makes sense, as abortion is highly politicized and a state’s view on abortion would influence its comfort with causes of action that are either about abortion (i.e., a botched-abortion wrongful pregnancy action) or would require a plaintiff to state that they would have had an abortion (a wrongful birth or life claim).¹⁵⁰ This correlation is important because it suggests that there may be future changes to the recognition of prenatal tort actions. As demographic and political changes occur over time,¹⁵¹ prenatal tort claims may become recognized or barred. The correlation also implies that views on prenatal tort actions may not be objective, but rather are influenced by political beliefs, as Judge Israel suggested above. This politicization helps to explain the opposition to prenatal tort claims in the United States¹⁵² and may be why wrongful birth actions are rarer here than in other “peer” countries such as Canada, Australia, and the United Kingdom.¹⁵³

Where prenatal tort claims are legal, they have survived abortion restrictions. For example, the Alabama Supreme Court recognized a claim for wrongful birth in 1993,¹⁵⁴ at a time when the state had abortion restrictions and steadily declining abortion services.¹⁵⁵ A lower Alabama court continued to allow negligent abortion claims in 2006,¹⁵⁶ when there were further restrictions and even fewer in-state providers.¹⁵⁷ In other states, a pregnant person’s ability to obtain an in-state abortion is, given abortion restrictions, a question of fact to be decided based on expert testimony.¹⁵⁸ Abortion restrictions may foreclose some prenatal tort claims but not all. The impact of a full abortion ban, however, can be more severe.

B. Effect of Dobbs

The impact of Dobbs on prenatal tort claims is limited to states that have recognized one or more claims and further depends on whether the state has seized on its authority under Dobbs to ban abortion. When a state that allows prenatal tort claims bans abortion, it compromises its existing prenatal tort law.

Since Dobbs authorized state legislatures to implement abortion bans in late June 2022, fourteen states have done so.¹⁵⁹ Many of these laws do not, either formally or in practice, provide exceptions for rape, incest, or medical differences in the fetus.¹⁶⁰ Yet the impact of Dobbs on prenatal tort claims is not as profound as it could be: ten of the states with new abortion bans had already barred either all prenatal tort claims or at least those most reliant upon abortion rights (wrongful birth and wrongful life actions).¹⁶¹ Four of the states with new abortion bans—Alabama, Texas, West Virginia, and Wisconsin—had case law authorizing wrongful pregnancy and wrongful birth claims before Dobbs.¹⁶² Now, plaintiffs in those states will be unable to make out any wrongful birth and some wrongful pregnancy claims because their state legislatures have prohibited abortion in almost all circumstances,¹⁶³ and the right to abortion is a necessary part of the claim.¹⁶⁴ In addition, some wrongful pregnancy claims in Alabama, Arkansas, Idaho, Louisiana, Missouri, Tennessee, Texas, West Virginia, and Wisconsin will be affected as these states authorize such claims.¹⁶⁵ These are the states where Dobbs’s impact on prenatal torts is currently felt, and the affected populations are sizable, amounting to 12.6% of the U.S. population.¹⁶⁶

Prenatal tort actions in additional jurisdictions may be affected by Dobbs over time as more state legislatures contemplate and pass abortion bans. At-risk states are conservative ones, including Florida, Indiana, and Ohio,¹⁶⁷ as they all currently authorize wrongful birth claims. Arkansas, Idaho, Missouri, and Tennessee¹⁶⁸ have adopted abortion bans, but they only recognize wrongful pregnancy claims as of now, so only plaintiffs who suffer negligent abortions would be affected. Wrongful life claims are unlikely to be affected as they are only recognized in California, New Jersey, Rhode Island, and Washington—all states with strong abortion protections.¹⁶⁹

1. Wrongful Birth

Post-Dobbs, many plaintiffs will no longer be able to satisfy the elements of a wrongful birth claim. Alabama, Texas, West Virginia, and Wisconsin prohibit abortion even when fetuses exhibit developmental anomalies.¹⁷⁰ In many wrongful birth cases, the causation prong is predicated on the right to abortion (arguing “but for the defendant’s negligence, I would have had an abortion”).¹⁷¹

Previously, Texas courts presumed causation where plaintiffs alleged that they would have sought an abortion had they known about the fetus’s developmental disability.¹⁷² Plaintiffs can still prove causation in some wrongful birth actions, namely where the medical professional’s negligence was the failure to inform the parents of their genetic markers that could cause developmental disabilities in their offspring.¹⁷³ In those cases, the parents can allege that they would have used birth control to avoid conceiving the child had the doctor properly informed them,¹⁷⁴ not that they would have had an abortion.

Plaintiffs in states that ban abortion may also be unable to prove a legal injury for a prenatal tort claim. The injury in wrongful birth and wrongful life cases was traditionally conceptualized as a medical professional having denied a parent their constitutional right to terminate a pregnancy in the first trimester.¹⁷⁵ Without that right, there is no injury from infringement. The harm in wrongful birth cases would have to be reformulated to a much smaller injury, such as the loss of chance to prepare for the birth of a child experiencing disability. But plaintiffs may still prevail if the court does not engage in a rigorous injury analysis or is otherwise inattentive.

Finally, Dobbs may have a chilling effect on bringing a wrongful birth claim. To litigate those claims, plaintiffs must be willing to openly allege in court that they would have had an abortion.¹⁷⁶ While abortion remains popular and arguably won the “culture war,”¹⁷⁷ plaintiffs in conservative states may be nervous to make such a public proclamation. Dobbs subjects people who seek abortions to increased scrutiny and blame.¹⁷⁸ The majority in Dobbs proclaimed that Roe was “egregiously wrong from the start.”¹⁷⁹ This strong language suggests to the American public that pregnant people having and exercising their right to choose was fundamentally wrong. The majority also repeatedly emphasized that Americans have “sharply conflicting”¹⁸⁰ or “passionate and widely divergent”¹⁸¹ views on abortion, signaling to people that if they were to have an abortion (or to claim in court that they would have had one if they could), many would strongly disagree with their decision. Dobbs also authorized states to criminalize abortion,¹⁸² leading people who seek abortion to be marked as potential criminals.

2. Wrongful Pregnancy

Similarly, wrongful pregnancy claims will be difficult to bring in states where abortion is now almost entirely illegal—Alabama, Arkansas, Georgia, Idaho, Louisiana, Missouri, Tennessee, Texas, West Virginia, and Wisconsin.¹⁸³

In these states, negligent abortion cases may disappear altogether because many abortions will no longer be performed at all.¹⁸⁴ Still, some physicians may continue to perform abortions. Physicians may intentionally break abortion laws if they believe that it is in their patient’s best interest and that complying with the law would breach their duty to their patients.¹⁸⁵ History gives an indication of what will come to pass: before Roe, people regularly violated laws prohibiting abortion.¹⁸⁶ However, even assuming that the practice of abortion continues, victims of negligently performed illegal abortions are unlikely to prevail in court. The defendant may be able to rely on the unlawful conduct defense, under which an allegedly negligent physician is not liable for damages suffered by patients as a result of crimes committed by those patients (including obtaining an illegal abortion).¹⁸⁷ Alternatively, the court may find that holding the defendant negligent would violate public policy.¹⁸⁸ And in wrongful pregnancy cases where the physician failed to diagnose the pregnancy and thus deprived the parent of their right to abortion,¹⁸⁹ plaintiffs will face the same causation and injury problems as in wrongful birth cases.¹⁹⁰

Plaintiffs in failed abortion cases will also be unable to prove the duty-of-care element because the physician’s duty flows from the legal right to the procedure.¹⁹¹ In negligently performed sterilization cases, plaintiffs may also be unable to prove their claims as the right not to procreate was based in part on the fundamental right recognized in Roe and stripped away in Dobbs.¹⁹² Even if courts still recognize the right not to reproduce, this right may not last long. In his Dobbs concurrence, Justice Thomas urged the Court to reconsider Griswold v. Connecticut,¹⁹³ the case that recognized the fundamental right of married couples to use birth control¹⁹⁴ and more broadly stands for the right to choose not to procreate.¹⁹⁵

To the extent that wrongful pregnancy claims in states without a constitutional or statutory right to abortion are founded on the constitutional right not to procreate, Justice Thomas’s call to action presents a serious risk to those claims.¹⁹⁶ The right not to procreate relies on the longstanding belief that an individual is sovereign over their own body.¹⁹⁷ Specifically, bodily autonomy protects the right not to be a gestational parent, as opposed to the legal or genetic parent.¹⁹⁸ In American constitutional law, this right was based on the abortion cases of Roe and Casey,¹⁹⁹ and is arguably also grounded in the contraception cases of Griswold, Eisenstadt, and Carey.²⁰⁰ Roe and Casey are now officially overturned,²⁰¹ and they might have taken the right not to be a gestational parent down with them. Even if the right can be said to rest on the contraception cases instead of the abortion ones, the former, too, are at risk of becoming bad law.²⁰² Despite the established idea of personal autonomy, courts may be wary to continue to recognize wrongful pregnancy claims.

3. Potential to Invalidate Precedent

Dobbs may even affect states where there is no imminent risk of an abortion ban. Just as wrongful pregnancy claims rely on constitutional rights, if case law establishing a prenatal tort claim was based on Roe, its rationale is now vulnerable to attack. Prenatal tort law in some states had a constitutional dimension; courts stated that failing to recognize a cause of action would infringe on the constitutional rights of conception and procreation.²⁰³ Of the thirty-seven states that have authorized wrongful pregnancy claims, seven relied on Roe to some extent in their decisions.²⁰⁴ Seven of the twenty-four states that allow wrongful birth claims similarly cited Roe.²⁰⁵

For these states where prenatal tort precedent was based on Roe, Dobbs may be lethal. This is because, for some courts, Roe was the deciding factor. In New Jersey, the state’s Supreme Court initially rejected wrongful birth and life claims,²⁰⁶ but it reversed course after Roe.²⁰⁷ Dobbs created an opening for some state courts to overturn prenatal tort case law because they can construe precedent to be based on “bad” constitutional law, even though Roe is not, and need not be, the justification for prenatal tort claims. As discussed in Part I, there are numerous policy reasons for allowing prenatal tort claims, and they are consistent with ordinary medical malpractice principles.²⁰⁸ States whose courts authorized a prenatal tort claim while holding that Roe was irrelevant to their decision²⁰⁹ are arguably the only ones safe from this line of reasoning.

Alternatively, courts may use broader public policy justifications to stop recognizing prenatal tort claims. Public policy arguments against abortion in prenatal tort cases generally lost force in the wake of Roe, as both the law and public sentiment changed.²¹⁰ Some courts held that public policy arguments against wrongful birth claims were not valid after Roe legitimized public policy that supported abortion.²¹¹ Now that Dobbs has overturned Roe, politicized arguments on prenatal tort claims and abortion could reemerge in states with abortion bans or states that are silent on abortion rights under new state public policy. These concerns do not apply to states that have affirmatively passed abortion protections or recognized abortion as a right under the state constitution,²¹² as courts would have to concede that state public policy still favors abortion and prenatal torts, even though the national public policy, at least in Justice Kavanaugh’s mind, is “neutral[].”²¹³

III. Potential Solutions

The problems that abortion bans pose for prenatal tort claims are not easy to remedy. This Part starts the conversation regarding possible solutions. It recommends legal approaches, such as invoking the constitutional right to interstate travel or the right to medication abortion, or pushing for doctrinal change from existing prenatal tort standards towards “reproductive negligence.” It also suggests nonlegal approaches, like advocating for widespread abortion rights, encouraging people to seek reproductive and prenatal care in states where abortion remains legal, and raising awareness about prenatal tort claims and the impact that abortion bans have already had and will continue to have on them.

A. Constitutional Right to Travel

One legal solution to the causation and injury problems that plaintiffs in wrongful birth, wrongful life, and some wrongful pregnancy cases now confront is to presume causation based on the constitutional right to travel and maintain an injury based on that right. The constitutional right to interstate travel “protects the right of a citizen of one State to enter and leave another State.”²¹⁴ Courts widely recognize this right.²¹⁵ In the abortion context, it means the right to travel to another state for abortion care. The Supreme Court has yet to rule on this right with regard to abortion, but in his Dobbs concurrence, Justice Kavanaugh voiced his support for a right to interstate travel for the purpose of seeking an abortion.²¹⁶

For prenatal tort claims, the legal injury could be based on the infringement of this constitutional right to travel instead of the right to abortion. State courts could presume causation based on this right: had the physician informed the plaintiff of their pregnancy or the fetus’s medical condition, they would have traveled to another state to obtain an abortion. Presuming causation would be a logical inference—some people live close to the border of a state with legal abortions, and others may be able to fly to another state with funding from an abortion fund²¹⁷ or their employer.²¹⁸ Unfortunately, this solution poses accessibility issues, as some people are unable to travel due to financial constraints, work, childcare responsibilities, domestic abuse, or a disability.²¹⁹ It is possible that leveraging this right would only assist more affluent plaintiffs, but this can be tempered by the work of existing abortion funds and employer abortion benefits. In any event, a presumption would be easier to administer than assessing each plaintiff’s capabilities.

Before Dobbs, Texas was the only state that presumed the plaintiff would have obtained an abortion had they been properly informed of the medical situation,²²⁰ so other states would have to elect to adopt a similar presumption, either via common law or statute. Texas courts may be reluctant to continue making this presumption now that the state has adopted an abortion ban, but they should. It is no greater a leap to presume that plaintiffs would have traveled out of state to obtain an abortion than to presume that plaintiffs would have obtained an in-state abortion during years with heavy abortion restrictions, such as the 2000s and 2010s.²²¹

Presuming that a plaintiff would have traveled out of state for abortion services raises the question of how to determine the point after which the physician has deprived the plaintiff of the right to travel. Previously, the right to abortion was infringed if the physician failed to inform the patient of the pregnancy or the fetus’s birth defect until after the state’s abortion cutoff,²²² or after the child was born, if prenatal testing was never performed.²²³ If the physician performs testing belatedly, what constitutes “too late” for purposes of liability? After the deadline to have an abortion in a neighboring state? Or, more generously to plaintiffs, after a later abortion deadline in a more distant state? Plaintiffs would have to track the abortion restrictions and bans of other states and argue which should apply.

Another complication is that some courts may be hesitant to presume causation because they want to leave the issue up to the jury. In a Florida wrongful birth case, the defendants inaccurately performed an ultrasound, failing to diagnose the fetus as missing three limbs.²²⁴ The defendants argued that the plaintiff could not have obtained an abortion even if the test had been correctly performed because it was conducted during the plaintiff mother’s third trimester, after the state’s abortion deadline.²²⁵ The trial court prohibited defendants from making this argument, reasoning that the mother could have traveled out of state for an abortion.²²⁶ But the appellate court reversed: it held the ability of a plaintiff to obtain an abortion out of state was not a valid reason to exclude evidence that third-trimester abortions are generally illegal in Florida.²²⁷ The jury on remand could still find that the plaintiff would have traveled out of state, but this case shows that courts may be reluctant to presume causation based on interstate travel. Still, the argument is worth making in other courts, especially with Justice Kavanaugh’s signal of approval.

B. The Abortion Pill

Another legal solution is a right to medication abortion, which could mitigate causation and injury problems in certain wrongful pregnancy cases. Medication abortion, the two-drug combination of Mifepristone and Misoprostol, currently accounts for more than half of all abortions in the United States.²²⁸ The FDA approved this medication twenty-three years ago²²⁹ and currently allows it to be sent by mail,²³⁰ although the FDA has always placed Mifepristone under a Risk Evaluation and Mitigation Strategy (REMS), including a Patient Agreement Form, provider certification, and most recently pharmacy certification, which did away with the in-person dispensing requirement.²³¹ After Dobbs, Attorney General Merrick Garland took the stance that “[s]tates may not ban Mifepristone” based on preemption theory—FDA rulings take precedence over state determinations—but the ongoing legal battles will take time to resolve.²³² Preemption theory could exempt Mifepristone from abortion bans or at least protect Mifepristone from state overregulation,²³³ but preemption theory did not stop Wyoming from becoming the first state to outlaw abortion pills.²³⁴

The existence of a right to medication abortion is contested and likely to be subject to ongoing litigation.²³⁵ In the first of these anticipated cases, Alliance for Hippocratic Medicine v. FDA, filed in the Northern District of Texas in November 2022, the plaintiffs claim that the FDA did not adequately review the scientific evidence or follow proper protocols when it approved the drug in 2000 and that it has since ignored the medication’s safety risks.²³⁶ If the plaintiffs prevail here, it will become illegal for the manufacturer to sell medication abortion nationwide, even in states where it is legal,²³⁷ as FDA approval is required by law.²³⁸ At the time of writing, the Supreme Court has stayed a Fifth Circuit ruling that largely affirmed the district ruling staying FDA approval of mifepristone, and mifepristone remains available while the case makes its way through the courts. But it is unclear what the ultimate outcome of this case will be, as there are serious questions regarding the plaintiffs’ standing and the validity of their arguments.²³⁹

Assuming that there is a legal right to abortion by medication, it could benefit plaintiffs in wrongful pregnancy cases where the doctor failed to diagnose the pregnancy in time. Plaintiffs could argue (1) that the physician should have diagnosed their pregnancy prior to the eleven-week mark (made possible by blood tests, with detection as early as ten days after ovulation); ²⁴⁰ (2) that the failure to diagnose caused the resulting child, because had the plaintiff been informed, they would have obtained a medication abortion; and (3) that this failure deprived the plaintiff of the legal right to choose to have a medication abortion.

A right to medication abortion would be unhelpful in wrongful birth and life cases for timing reasons. Pregnant people can only use the abortion pill up to eleven weeks after the first day of their last menstrual period,²⁴¹ while fetal health screenings do not occur until eleven to thirteen weeks at the earliest, and some tests not until the second trimester.²⁴² As a result, those plaintiffs cannot argue that had their physician performed the testing correctly, or on time, or at all, they would have obtained a medication abortion from a local or international provider.²⁴³ Still, wrongful pregnancy plaintiffs may have more success in proving the elements as listed above.

C. Reframing the Injury: “Reproductive Negligence”

Before and unrelated to Dobbs, Professor Dov Fox proposed the recognition of a new cause of action, “reproductive negligence,” for when misconduct imposes procreation (including wrongful pregnancy), confounds it (including wrongful birth), or deprives it (a category of wrongs that none of the three prenatal tort claims currently address).²⁴⁴ Professor Fox argued that such doctrinal development is necessary because tort law and other areas of the law do not allow plaintiffs to prevail often enough or to recover the full extent of the damages caused.²⁴⁵ His new framework would better serve plaintiffs in prenatal tort cases, allowing them to recover more frequently and with more damages in total. But a claim for reproductive negligence cannot evade the impacts of an abortion ban. Reproductive negligence claims are, like existing prenatal torts, still rooted in negligence: the “negligent imposition of pregnancy and/or parenthood”²⁴⁶ or “negligently confounded” procreation.²⁴⁷ As a result, some reproductive negligence claims will still face the but-for causation problems that abortion bans create.

On the other hand, reproductive negligence claims get around abortion ban injury issues by reframing the injury. The injury is not deprivation of the right to abortion, based on Roe, but the more expansive “lost control over reproductive plans.”²⁴⁸ Alternatively, the injury could be framed as “the loss of what the plan meant to produce.”²⁴⁹ Litigants could use this language to move away from injury claims based on Roe.

However, courts may not accept reproductive negligence as a theory of harm. In arguing for doctrinal change, Professor Fox did not address the feasibility of implementation. Professor Carol Sanger critiqued reproductive negligence as politically difficult, given current abortion politics: “[T]ort reforms that might otherwise extend notions of liability for reproductive negligence may be seen as dangerous or unacceptable because of their explicit recognition that not all children are wanted and that people will take steps to prevent their births.”²⁵⁰ It is time to argue that America is now ready for reproductive negligence. A loss of control over reproduction as a tangible injury can help plaintiffs circumvent disagreements over abortion.

D. Nonlegal Solutions

Given the legal and economic limitations of the other suggestions, the best option for protecting prenatal tort claims is to lobby for widespread abortion rights. Resisting future abortion bans and seeking to change current bans is the most effective way to prevent unintended effects on prenatal tort law. Prenatal tort claims are inseparable from abortion rights, as abortion is embedded in causation and injury for many prenatal tort claims.²⁵¹ Even if separation were possible, that may not be desirable, as one of the purposes of prenatal tort claims is to enforce the right to abortion.²⁵² The challenge here is that abortion is a divisive political issue, and keeping abortion legal until viability is not politically feasible in some conservative states. There is still hope, as a majority of Americans support the right to abortion.²⁵³ There has been strong pushback to Dobbs, even in certain conservative states.²⁵⁴

A second possibility is to encourage patients to seek medical care in states with both abortion rights and prenatal tort claims. When out-of-state patients receive reproductive or prenatal care in such states, they are covered by that state’s laws. If negligence occurs, these patients will have standing to sue in that state under its prenatal tort laws.²⁵⁵ Being an out-of-state litigant is not necessarily more expensive or burdensome for the plaintiff.²⁵⁶ Obtaining prenatal care out-of-state is less accessible, but it may be possible for a one-time genetic counseling or abortion appointment, especially for those who live close to such a border state.²⁵⁷ Cross-border travel, born out of necessity, is already a common practice for abortions post-Dobbs for those who can manage it.²⁵⁸ Genetic counseling may be provided virtually by a counselor in another state.²⁵⁹

Another avenue is to raise awareness of the importance of prenatal tort claims and the way they have been impacted by Dobbs. People trying to get pregnant or to avoid pregnancy should be aware of their rights in their state and how to best protect themselves. State legislatures should be forced to consider how abortion bans without exceptions will impact the state’s preexisting tort law.

Conclusion

Abortion bans detrimentally affect prenatal tort claims in serious ways. Prenatal tort claims serve essential interests, but Dobbs has changed the landscape of pursuing them in certain states. Prenatal tort claims are worth saving, and greater attention to prenatal torts may illuminate further solutions.

* J.D. Candidate, May 2024, University of Michigan Law School. Thank you to Professor Scott Hershovitz, whose guidance and feedback made this Note possible. I am incredibly grateful to the Michigan Law Review Volume 122 Notes Office (Jordan Schuler, Hannah Cohen Smith, Edward Plaut, Kassie Fotiadis, Katie M. Osborn, and Ashley Munger), Executive Editor Nick Sweeney, and Deputy Editor-in-Chief Rita Elfarissi. Thank you to Carter Brace for pushing me to write this piece from the moment I told him about it. Finally, I thank my parents.