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

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.


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.1Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). Fourteen states now have such bans in place.2Tracking the States Where Abortion Is Now Banned, N.Y. Times (May 5, 2023, 4:00 PM) [hereinafter Tracking the States], []. However, Wisconsin’s ban is a nineteenth-century law that predates Roe v. Wade. Id. The Wisconsin Department of Justice is currently challenging this law. Sarah Lehr, The Legal Challenge of Wisconsin’s 1849 Abortion Ban Is Awaiting Its Day in Court. Where Does the Case Stand?, Wis. Pub. Radio (Sept. 30, 2022, 6:25 PM), []. The Dobbs decision also cleared the way for more severe abortion restrictions than existed under the Roe regime.3States can now restrict abortion prior to viability, which was generally between 23 and 28 weeks under Roe. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 860 (1992), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). Nebraska, Arizona, Florida, Utah, and North Carolina now have gestational limits of 12, 15, 15, 18, and 20 weeks, respectively. Tracking the States, supra note 2. 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.4E. Travis Ramey noted some of the impact of Dobbs on wrongful birth claims. E. Travis Ramey, Wrongful Birth After Dobbs, SSRN (Oct. 31, 2022), []. The scope of this Note is broader. It evaluates wrongful pregnancy, life, and birth claims; proposes additional solutions; and provides a nationwide survey of where jurisdictions stand on prenatal torts.

In the decades following Roe, state courts began to widely recognize certain prenatal tort claims.5See infra Section II.A. These claims address situations where a medical professional6In contexts outside the scope of this Note, the term “prenatal torts” refers to suits brought by a child against their mother for injuries sustained as a fetus attributed to the mother’s negligence. Ron Beal, “Can I Sue Mommy?” An Analysis of a Woman’s Tort Liability for Prenatal Injuries to Her Child Born Alive, 21 San Diego L. Rev. 325, 325–26 (1984). fails to satisfy their duty of care by act or omission when providing genetic counseling or prenatal testing, administering contraception, or diagnosing infertility.7See Dov Fox, Essay, Reproductive Negligence, 117 Colum. L. Rev. 149, 166–67 (2017). As medical malpractice actions, prenatal tort claims are governed primarily by state common law principles.8See Hester ex rel. Hester v. Dwivedi, 733 N.E.2d 1161, 1163 (Ohio 2000) (“While these types of cases are commonly labeled ‘wrongful life,’ ‘wrongful pregnancy,’ ‘wrongful birth,’ or ‘wrongful living’ actions, they are not governed by statutory law as are wrongful death actions. They remain, at their core, medical negligence actions, and are determined by application of common-law tort principles.”); Robak v. United States, 658 F.2d 471, 476 (7th Cir. 1981) (“[Wrongful birth] is little different from an ordinary medical malpractice action. It involves a failure by a physician to meet a required standard of care, which resulted in specific damages to the plaintiffs.”). 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.9See Gregg J. Gittler & Ellie J.C. Goldstein, The Elements of Medical Malpractice: An Overview, 23 Clinical Infectious Diseases 1152, 1153 (1996). Courts have applied the elements of medical malpractice claims to prenatal tort claims. See Turpin v. Sortini, 643 P.2d 954, 960 (Cal. 1982); Boone v. Mullendore, 416 So. 2d 718, 720 (Ala. 1982); Lovelace Med. Ctr. v. Mendez, 805 P.2d 603, 616 (N.M. 1991). In federal court, plaintiffs can bring suit under the Federal Tort Claims Act, but the claim remains governed by the same state law principles.10See Simms ex rel. C.J. v. United States, 839 F.3d 364 (4th Cir. 2016); Pacheco v. United States, 21 F.4th 1183 (9th Cir. 2022).

Prenatal torts give rise to three distinct causes of action: wrongful pregnancy, wrongful birth, and wrongful life.11Prenatal tort terminology is not uniform. Sometimes, wrongful pregnancy, wrongful birth, and wrongful life have been used to refer to entirely different situations. See Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 487 (Wash. 1983) (en banc) (“The epithet wrongful birth has been used to describe several fundamentally different types of action.”). At other times, wrongful birth and wrongful pregnancy have at times been used interchangeably. See Cockrum v. Baumgartner, 447 N.E.2d 385, 386 (Ill. 1983). This Note will use the definitions provided in this paragraph. 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.12Smith v. Gore, 728 S.W.2d 738, 741 (Tenn. 1987). Cases often arise from negligently performed sterilization procedures13See, e.g., James G. v. Caserta, 332 S.E.2d 872, 875 (W. Va. 1985). or abortions,14See Miller v. Johnson, 343 S.E.2d 301, 302 (Va. 1986). or incorrectly administered15See Pacheco, 21 F.4th 1183 (recognizing a wrongful pregnancy action where a medical professional gave the plaintiff a flu shot instead of a birth control shot); Jackson v. Bumgardner, 347 S.E.2d 743 (N.C. 1986) (recognizing the same where a medical professional failed to replace plaintiff’s IUD). or inserted16See Clutter-Johnson v. United States, 242 F. Supp. 3d 477 (S.D.W. Va. 2017) (recognizing a wrongful pregnancy action for a negligently inserted IUD). 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.17Smith, 728 S.W.2d at 741. Typical wrongful birth cases involve a medical professional’s failure to discover18See Blouin v. Koster, No. PC-2015-3817, 2016 WL 3976926 (R.I. Super. Ct. July 19, 2016) (recognizing a wrongful birth action for failure to do genetic screening); Garrison v. Med. Ctr. of Del. Inc., 581 A.2d 288 (Del. 1989) (recognizing the same for failure to do timely amniocentesis). or diagnose19See Keel v. Banach, 624 So. 2d 1022 (Ala. 1993) (recognizing a wrongful birth action for failure to identify fetal differences during sonograms). a medical condition in the parents20See Jacobs v. Theimer, 519 S.W.2d 846 (Tex. 1975) (recognizing a wrongful birth action for failure to warn pregnant mother with rubella of fetal risks). or the fetus21See Blouin, 2016 WL 3976926; Garrison, 581 A.2d 288. 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.22Smith, 728 S.W.2d at 741; Williams v. Univ. of Chi. Hosps., 688 N.E.2d 130, 133 (Ill. 1997); Thomas Keasler Foutz, Comment, “Wrongful Life”: The Right Not To Be Born, 54 Tul. L. Rev. 480, 485 (1980) (specifying that in a wrongful life claim, “[t]he child argues that but for inadequate advice, it would not have been born to experience the pain and suffering attributable to the deformity”). 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.23Seana Valentine Shiffrin, Wrongful Life, Procreative Responsibility, and the Significance of Harm, 5 Legal Theory 117, 117 n.3 (1999).

All three types of prenatal tort claims are hotly contested,24See Dov Fox, Birth Rights and Wrongs 44 (2019). politicized, and intertwined with abortion.25See infra Section II.B. Courts have long grappled with prenatal tort claims26See, e.g., Bishop v. Byrne, 265 F. Supp. 460, 463 (S.D.W. Va. 1967); Troppi v. Scarf, 187 N.W.2d 511 (Mich. Ct. App. 1971). and whether to recognize them.27See Johnson v. Univ. Hosps. of Cleveland, 540 N.E.2d 1370, 1377 (Ohio 1989) (“[W]e comment that [whether to recognize a wrongful pregnancy action] has been one of the most difficult cases we have been called upon to decide.”). Most states do not recognize all prenatal tort claims, some do not recognize any, and many limit their damages.28See infra Table 1. Although some scholars consider prenatal tort claims altogether inadequate and unsuccessful,29Fox, supra note 7. such characterizations are extreme. These claims sometimes enable plaintiffs to recover substantial damages for reproductive wrongs that would otherwise go unaddressed.30See Pacheco v. United States, 48 F.4th 976, 977 (9th Cir. 2022) (affirming award of ,042,294.81 in wrongful pregnancy case); Phillips v. United States, 575 F. Supp. 1309, 1319 (D.S.C. 1983) (awarding ,283,765.00 in economic damages, 2,500.00 in emotional distress damages to the mother, and ,500.00 in emotional distress damages to the father, for a total of ,533,765.00 for the wrongful birth of a child with Down Syndrome); Marciniak v. Lundborg, 450 N.W.2d 243, 246 (Wis. 1990) (allowing recovery in wrongful pregnancy action for “substantial” damages—the cost of raising a child until the age of majority). 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.31See infra Section I.D. for a discussion of prenatal torts and disability. The medical profession invented the label “defective,” now considered derogatory, to describe a fetus that deviates from developmental expectations.32See Lois Shepherd, Protecting Parents’ Freedom to Have Children with Genetic Differences, 1995 U. Ill. L. Rev. 761, 764 (1995). Many courts have used “defective”33Siemieniec v. Lutheran Gen. Hosp., 512 N.E.2d 691, 698 (Ill. 1987). or other language with negative connotations like “retarded,”34Becker v. Schwartz, 386 N.E.2d 807, 808 (N.Y. 1978). “deformed,”35Kush v. Lloyd, 616 So. 2d 415, 417 (Fla. 1992). and “impaired” to describe children experiencing disability in prenatal tort cases.36Smith v. Cote, 513 A.2d 341, 351 (N.H. 1986). In an effort to avoid the stigmatization that these derogatory words cause, this Note will use the language “people experiencing disability.”37I recognize that, as disability language is constantly evolving and is a deeply personal decision, some may prefer other terms. See Erin E. Andrews, Robyn M. Powell & Kara Ayers, Commentary, The Evolution of Disability Language: Choosing Terms to Describe Disability, Disability & Health J., July 2022, Article No. 101328, []. 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 negligence38Deborah Pergament & Katie Ilijic, The Legal Past, Present and Future of Prenatal Genetic Testing: Professional Liability and Other Legal Challenges Affecting Patient Access to Services, 3 J. Clinical Med. 1437 (2014). 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,39See Deana A. Pollard, Wrongful Analysis in Wrongful Life Jurisprudence, 55 Ala. L. Rev. 327, 336 (2004). 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 2017.40Abha Bhattarai, Dan Keating & Stephanie Hays, What Does it Cost to Raise a Child?, Wash. Post (Oct. 13, 2022), []. In many wrongful pregnancy cases, the plaintiff did not want a child—hence the vasectomy, sterilization, or abortion at issue41See, for example, Dotson v. Bernstein, 207 P.3d 911 (Colo. App. 2009), where the plaintiff suffered a negligent abortion and gave birth to an unwanted child, and Boone v. Mullendore, 416 So. 2d 718 (Ala. 1982), where the plaintiff unexpectedly gave birth after being told that she was sterile and could not bear children.—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.42Brief of Amici Curiae Economists in Support of Respondents at 23, Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (No. 19-1392). 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.43David Pimentel, A Cure for What Ails You: How Universal Healthcare Can Help Fix Our Tort System, 100 Or. L. Rev. 501, 503 (2022). Pregnancy and child rearing are demanding and time consuming.44Fox, supra note 7, at 179–80. Because of these profound injuries, Dov Fox advocates for a doctrinal shift away from prenatal tort claims to a new claim of “reproductive negligence,” as he believes that prenatal tort law does not adequately remedy these harms. I take up this argument infra Section III.C. They come with opportunity costs and can limit parents’ educational and professional prospects for nine months or more.45Fox, supra note 7, at 179–80. Plus, the parent victim of a prenatal tort may already have other dependent children.46See, e.g., Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 396 (Iowa 2017); Simmerer v. Dabbas, 733 N.E.2d 1169, 1169 (Ohio 2000); Johnston v. Elkins, 736 P.2d 935, 937 (Kan. 1987). 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.47Crawford v. Kirk, 929 S.W.2d 633, 634–35 (Tex. App. 1996). 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.48Id. at 635.

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.49Fox, supra note 7, at 155.

Parenthood or additional children can cause a family psychological and physical harm resulting from childbirth, child care, or having an unwanted child.50See Roe v. Wade, 410 U.S. 113, 153 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022). If the child experiences disability, the child may endure chronic pain—suffering that the rest of the family, in turn, must witness.51See Alexander Morgan Capron, Tort Liability in Genetic Counseling, 79 Colum. L. Rev. 618, 641 (1979). 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.52See Wendy F. Hensel, The Disabling Impact of Wrongful Birth and Wrongful Life Actions, 40 Harv. C.R.-C.L. L. Rev. 141, 171 (2005).

B. Deterring Misconduct

There is a great need to deter negligence in reproductive care and prenatal genetic testing.53Id. at 190. Patients seeking these services are in no position to bargain or insure against bad outcomes.54Fox, supra note 7, at 152. In addition, these forms of medical care are poorly regulated and lack effective self-policing.55Id. at 163–64, 172–74.

Negligence law is often considered a means to deter careless behavior,56William B. Schwartz & Neil K. Komesar, Doctors, Damages and Deterrence: An Economic View of Medical Malpractice, 298 New Eng. J. Med. 1282, 1282 (1978). and prenatal tort liability may facilitate such deterrence.57See Pollard, supra note 39, at 339 (“This factor alone—discouraging medical practitioners from carelessness in genetic testing and disclosure—warrants imposition of liability in wrongful life cases.”). In theory, the costs of litigation encourage health systems to invest in safety precautions.58Michelle M. Mello & Troyen A. Brennan, Deterrence of Medical Errors: Theory and Evidence for Malpractice Reform, 80 Tex. L. Rev. 1595, 1603 (2002). There may also be some deterrent effects on individual medical professionals who do not wish to spend time defending a lawsuit,59Id. at 1603 n.41. suffer reputational harm,60See Schwartz & Komesar, supra note 56, at 1287. or lose their jobs.61See David M. Studdert et al., Changes in Practice Among Physicians with Malpractice Claims, 380 New Eng. J. Med. 1247, 1251–52 (2019) (finding that physicians’ odds of leaving clinical practice or shifting to a smaller practice increased with the number of their paid malpractice claims). 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.62Miller v. Johnson, 343 S.E.2d 301 (Va. 1986). 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.63Id. at 302. 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.64See infra Table 1. 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.65Michelle M. Mello et al., Communication-And-Resolution Programs: The Challenges and Lessons Learned from Six Early Adopters, 33 Health Affs. 20 (2014). These programs improve patient care but are not universally available.66Id.

Empirical evidence of medical error deterrence is hard to find,67Mello & Brennan, supra note 58, at 1604. and some believe that its benefits are minimal.68See, e.g., Patricia M. Danzon, Liability for Medical Malpractice, J. Econ. Persps., Summer 1991, at 51, 52. 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.69Daniel Rocke & Walter T. Lee, Medical Errors: Teachable Moments in Doing the Right Thing, 5 J. Graduate Med. Educ. 550 (2013). Furthermore, medical malpractice insurance, which most physicians carry,70B. Sonny Bal, An Introduction to Medical Malpractice in the United States, 467 Clinical Orthopaedics & Related Rsch. 339, 340 (2009); see also Schwartz & Komesar, supra note 56, at 1287. blunts the force of deterrence.71Schwartz & Komesar, supra note 56, at 1287. The negligent physician may not even experience an increase in insurance premiums.72Id. These flaws are not unique to prenatal tort claims, but rather are endemic to medical malpractice law.73See Mello & Brennan, supra note 58, at 1603–04. 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,74Tillman v. Goodpasture, 424 P.3d 540, 543 (Kan. Ct. App. 2018) (citing Arche v. United States, 798 P.2d 477 (Kan. 1990)). 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.75See Carol Sanger, The Lopsided Harms of Reproductive Negligence, 118 Colum. L. Rev. Online 29, 34 (2017).

Women are disproportionately harmed by reproductive negligence.76Id. at 40. 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.77See Darcy Lockman, Too Often, Working Mothers Do Far More of the Childcare than Their Husbands. Here’s How to Fix That, Time (May 16, 2019, 2:30 PM), []; Shera Avi-Yonah, Women Did Three Times as Much Child Care as Men During Pandemic, Bloomberg (June 25, 2021, 12:00 AM), []. Through prenatal tort claims, tort law can be a force for creating equality.78See Martha Chamallas, Architecture of Bias: Deep Structures in Tort Law, 146 U. Pa. L. Rev. 463, 530 (1998). Otherwise, women’s suffering may become invisible and their hardships may go unaddressed.79Id. at 498.

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.80Martha Chamallas, Theorizing Damage Through Reproductive Torts, Jotwell (July 29, 2015), []. Men have access to pregnancy-related medical malpractice claims as well, including failed vasectomy claims.81See, e.g., Christensen v. Thornby, 255 N.W. 620, 620 (Minn. 1934). In other cases, a man’s sperm may have been used without his consent, forcing him into parenthood.82Brown v. Wyatt, 202 S.W.3d 555, 562 (Ark. Ct. App. 2005). 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.83Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 410 (Iowa 2017) (holding that a father can bring an independent wrongful birth claim in part because of his legal obligation to support his child experiencing disability). Prenatal tort claims can provide male victims with resources to pay for their unexpected child.

D. Centering Disability Justice84The intersection between disability justice and prenatal torts is a rich and complex issue that cannot be fully explored here. For further reading, see Hensel, supra note 52, at 190, Sofia Yakren, “Wrongful Birth” Claims and the Paradox of Parenting a Child with a Disability, 87 Fordham L. Rev. 583 (2018), and Kerry T. Cooperman, Essay, The Handicapping Effect of Judicial Opinions in Reproductive Tort Cases: Correcting the Legal Perception of Persons with Disabilities, 68 Md. L. Rev. Online 1, 14 (2008).

Without question, prenatal tort claims have stigmatized the disability community.85See supra notes 32–36 and accompanying text. These claims often assume that disability is undesirable.86See Yakren, supra note 84, at 593–94; Sophie Zhang, The Morality of Having Children with Disabilities: A Different Perspective on Happiness and Quality of Life, 8 McGill J. Med. 85, 86 (2004). Some courts have declined to recognize wrongful birth and life claims because of the risks this assumption poses.87Grubbs ex rel. Grubbs v. Barbourville Fam. Health Ctr., P.S.C., 120 S.W.3d 682, 690 (Ky. 2003) (“[W]rongful birth cases could slide quickly into applied eugenics.”). The disability community is large and diverse,88Approximately 26% of American adults experience disability. Disability Impacts All of Us, Ctrs. for Disease Control & Prevention (May 15, 2023), []. and people within it have complex and differing views on prenatal tort suits. Disability advocates have argued both for89See, e.g., Yakren, supra note 84 (supporting wrongful birth claims, subject to reforms); Cooperman, supra note 84 (supporting reproductive torts, subject to reforms). and against90See, e.g., Hensel, supra note 52; Darpana M. Sheth, Better Off Unborn? An Analysis of Wrongful Birth and Wrongful Life Claims Under the Americans with Disabilities Act, 73 Tenn. L. Rev. 641 (2006). 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.91Marsha Saxton, Why Members of the Disability Community Oppose Prenatal Diagnosis and Selective Abortion, in Prenatal Testing and Disability Rights 147 (Erik Parens & Adrienne Asch eds., 2000). 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.92See infra notes 111–118 and accompanying text.

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 expenses93Capron, supra note 51, at 639.:

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.94Yakren, supra note 84, at 627.

Even prenatal tort claim critics acknowledge the “compelling” need to compensate people experiencing disability so they can secure necessary services.95Hensel, supra note 52, at 171.

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.96Bushman v. Burns Clinic Med. Ctr., 268 N.W.2d 683, 687–88 (Mich. Ct. App. 1978). Childbirth was extremely difficult for her: she suffered greatly through her four previous deliveries due to spine and pelvis conditions.97Id. at 688. 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 Fox, supra note 24, at 45. Advanced notice enables parents to secure time-sensitive medical or surgical treatment that the fetus or child may need.99Id. To the extent that potential tort liability incentivizes doctors to provide better care, prenatal tort claims may benefit the child who experiences disability.100See supra Section I.B.

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.101Emily Rapp, Rick Santorum, Meet My Son, Slate (Feb. 27, 2012, 6:45 AM), []. 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.”102Id. Rapp identifies as a person experiencing disability herself and loves her life, yet she wishes that her child would not suffer.103Id. 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.”104Lyndsay Werking-Yip, Opinion, I Had a Late-Term Abortion. I Am Not a Monster, N.Y. Times (Oct. 19, 2019), []. 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.105Hensel, supra note 52, at 144–45. 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.106Id. at 165–67. 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 community107Id. at 171 (quoting Harlan Hahn, Feminist Perspectives, Disability, Sexuality, and Law: New Issues and Agendas, 4 S. Cal. Rev. L. & Women’s Stud. 97, 106–07 (1994)).:

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.108Id. at 171–72 (footnote omitted).

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.109See Anne Bloom with Paul Steven Miller, Blindsight: How We See Disabilities in Tort Litigation, 86 Wash. L. Rev. 709 (2011). Tort litigation requires people experiencing disability to present themselves in an often-tragic way that does not reflect how they see themselves.110Id. at 712–13. These cases may also be hyperfocused on their bodies.111Id. at 722–23. Tort law fosters stereotypes and forces plaintiffs experiencing disability to see themselves in harmful ways.112Id. at 713. 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.113Cooperman, supra note 84, at 14; Bloom with Miller, supra note 109, at 713. 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.”114Cooperman, supra note 84, at 18. 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 . . . .”115Willis v. Wu, 607 S.E.2d 63, 71 (S.C. 2004). Courts must also not assume that disability connotes misfortune while a nondisabled child is a “blessing.”116Cooperman, supra note 84, at 5, 15. 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.117See generally Zhang, supra note 86. 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.118See Cooperman, supra note 84, at 17.

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.119Bloom with Miller, supra note 109, at 715–16. These changes would require the cooperation of many stakeholders and may not happen overnight, but judicial training120Some states’ judicial training on gender bias and sexual assault could serve as a model. See Suzanne J. Miller, Note, Judicial Language in New Jersey Sexual Violence Cases, 73 Rutgers U. L. Rev. 141, 149 (2020). and filing requirements121Linguistic rules regarding how parties discuss disability could be codified in filing requirements. For a similar example, see Rick Pluta, Proposed Rule Would Require Michigan Courts to Respect Preferred Pronouns, Mich. Radio (Jan. 19, 2023, 5:25 PM), []. 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,122See e.g., Fox, supra note 24, at 43 (stating that wrongful life actions are “forbidden in every state except California, Maine, New Jersey, and Washington” while Rhode Island authorized them in 2016); see also Deborah Pergament & Katie Ilijic, The Legal Past, Present and Future of Prenatal Genetic Testing: Professional Liability and Other Legal Challenges Affecting Patient Access to Services, 3 J. Clinical Med. 1437, 1147–49 tbl.1 (2014) (providing no information about Ohio wrongful birth claims when there was 2006 case law recognizing such claims). incomplete,123See e.g., 3 Jerome H. Nates, Clark D. Kimball, Diana T. Axelrod & Richard P. Goldstein, Damages in Tort Actions § 18.04 (2023) (leaving wrongful life boxes empty for Alabama, Connecticut, Delaware, Florida, Indiana, Maryland, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Texas, Virginia, and Wisconsin although there is relevant law for these states, and altogether omitting Hawaii, Kentucky, Montana, Nebraska, North Dakota, and South Carolina). incorrect,124See, e.g., Fox, supra note 24, at 43 (claiming that twenty-four states reject wrongful birth claims when the actual number is sixteen); see also Pergament & Ilijic, supra note 122, at 1147–49 tbl.1 (leaving Ohio’s “wrongful birth” cell blank when that tort is authorized by case law; stating that Pennsylvania’s statute prohibiting wrongful birth and wrongful life was found unconstitutional when, in reality, the cited case was overturned by the Pennsylvania Supreme Court; and falsely stating that there is no cause of action for wrongful birth in Wisconsin). or confuse prenatal tort terminology.125See Pergament & Ilijic, supra note 122, at 1147–49 tbl.1 (stating that Wyoming allows wrongful birth claims—in the common sense where the child is born with a negligently caused disability—when the case cited authorizes only wrongful pregnancy claims). Other scholars have quoted data without verifying it,126See, e.g., Fox, supra note 7, at 166 n.98 (alleging that “[t]he only states that allow wrongful-life actions are California, New Jersey, and Washington,” missing Rhode Island and citing to Pergament & Ilijic, supra note 122, at 1147–49 tbl.1, a study with numerous errors). thereby perpetuating erroneous information, or have failed to provide a citation for their figures.127See, e.g., Fox, supra note 24, at 43 (failing to provide a citation for the assertion that “[s]tatutes bar wrongful birth claims in a dozen states, while courts in another dozen reject them by common law,” as well as for the assertion that wrongful life actions “are forbidden in every state except California, Maine, New Jersey, and Washington”).

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),128See infra Table 1 (Alabama, Colorado, Connecticut, Delaware, Florida, Illinois, Indiana, Maine, Maryland, Massachusetts, Nevada, New Hampshire, New York, Ohio, Oregon, Texas, Virginia, and Wisconsin). allow only wrongful pregnancy claims (sixteen states),129See infra Table 1 (Alaska, Arkansas, Georgia, Idaho, Iowa, Kansas, Louisiana, Michigan, Minnesota, Missouri, New Mexico, North Carolina, Pennsylvania, Tennessee, Utah, and Wyoming). outlaw all prenatal torts (four states),130See infra Table 1 (Arizona, Kentucky, Oklahoma, and South Dakota). authorize all three (three states),131See infra Table 1 (New Jersey, Rhode Island, and Washington). or remain silent on all three (four states).132See infra Table 1 (Hawaii, Mississippi, Montana, and Nebraska). 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.133See infra Section II.B.

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.1341 Personal Injury: Actions, Defenses, Damages § 1.01 (2022). 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].135Id.

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 Fox, supra note 24, at 43; Hummel v. Reiss, 608 A.2d 1341, 1342 (N.J. 1992) (“[N]o wrongful-life cause of action exists for children who were born before Roe v. Wade.”). While Roe did not cause every state to recognize prenatal tort claims,137 Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race, Gender, and Tort Law 132 (2010). some state courts relied on Roe in their decisions legalizing such actions.138See, e.g., Azzolino v. Dingfelder, 337 S.E.2d 528, 535 (N.C. 1985) (“[P]regnant women have been recognized as having an absolute constitutional right, at least until a certain point in their pregnancy, to have an abortion performed for any reason at all or for no reason.” (citing Planned Parenthood Ass’n of Kan. City v. Ashcroft, 462 U.S. 476 (1983); Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022))). Roe did not directly speak to prenatal tort claims,139See Roe v. Wade, 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022). 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 Chamallas & Wriggins, supra note 142, at 135.

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:141See Fox, supra note 24, at 44.

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.142Schloss v. Miriam Hosp., No. C.A. 98-2076, 1999 WL 41875, at *4 (R.I. Super. Ct. Jan. 11, 1999) (emphasis added).

Wrongful birth claims produced sharply differing judicial opinions that tended to adopt either “pro-choice” or “pro-life” perspectives on abortion.143See Chamallas & Wriggins, supra note 142, at 131. 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.”144Phillips v. United States, 508 F. Supp. 537, 543 (D.S.C. 1980). 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 Utah Code Ann. § 78B-3-109 (West 2023). 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,”14642 Pa. Cons. Stat. § 8305 (2023). a tenet of pro-life beliefs.147See Jed Rubenfeld, On the Legal Status of the Proposition that “Life Begins at Conception, 43 Stan. L. Rev. 599, 625 (1991).

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.148See infra Table 2. 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.149See infra Table 2. 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.

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).150State political leanings are a difficult metric to represent precisely. The makeup of political offices does not always reflect the state’s actual perspectives on abortion, as views on abortion are rapidly evolving. See History of Abortion Ballot Measures, Ballotpedia, []. 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,151For example, Democrats won control of the Michigan legislature in November 2022, as well as the governorships of Arizona, Maryland, and Massachusetts, and Republicans obtained the Nevada governorship. David A. Lieb, Flip of Michigan Legislature Highlights Role of Fair Maps, AP News (Nov. 22, 2022, 10:02 AM), []; Governor Election Results, N.Y. Times (Jan. 9, 2023), []. 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 Fox, supra note 24, at 44. and may be why wrongful birth actions are rarer here than in other “peer” countries such as Canada, Australia, and the United Kingdom.153Id.

Where prenatal tort claims are legal, they have survived abortion restrictions. For example, the Alabama Supreme Court recognized a claim for wrongful birth in 1993,154Keel v. Banach, 624 So. 2d 1022 (Ala. 1993). at a time when the state had abortion restrictions and steadily declining abortion services.155Brian Lyman & Evan Mealins, A History of Abortion Law and Abortion Access in Alabama, Montgomery Advertiser (June 24, 2022, 9:59 AM), []. A lower Alabama court continued to allow negligent abortion claims in 2006,156L.K.D.H. ex rel. J.L.D. v. Planned Parenthood of Ala., 944 So. 2d 153 (Ala. Civ. App. 2006). when there were further restrictions and even fewer in-state providers.157Lyman & Mealins, supra note 188. 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.158See, e.g., Hall v. Dartmouth Hitchcock Med. Ctr., 899 A.2d 240, 245–46 (N.H. 2006). 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.159These states are Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, West Virginia, and Wisconsin. Five additional states have a previability gestational limit: Arizona, Florida, Georgia, Nebraska, North Carolina, and Utah. Tracking the States, supra note 2. Many of these laws do not, either formally or in practice, provide exceptions for rape, incest, or medical differences in the fetus.160Id.; Amy Schoenfeld Walker, Most Abortion Bans Include Exceptions. In Practice, Few Are Granted., N.Y. Times (Jan. 21, 2023), []. 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).161See supra Tables 1 & 2. Abortion bans are correlated with prenatal tort bans: 71% of states with abortion bans ban wrongful birth or wrongful life claims, compared to only 19% of states without abortion bans. Of the states with abortion bans or gestational limits on abortion, 50% ban both wrongful birth and life claims, and 85% ban at least one of these two claims, while none of these states allow wrongful life claims, and only 15% permit wrongful birth claims. Of the states (including the District of Columbia) with legal abortion of some kind, only 16% ban both wrongful birth and life claims, 68% ban at least one of these two claims, while 12.9% permit wrongful life claims and 61% allow wrongful birth claims. However, having prohibited prenatal torts by statute or common law is not a necessary condition for an abortion ban: Alabama, Texas, West Virginia, and Wisconsin all have abortion bans but authorize wrongful birth claims. Other states do not outlaw abortion but have forbidden all prenatal torts (Arizona and Utah) or wrongful birth claims (Kansas, Michigan, Minnesota, North Carolina, and Pennsylvania). See supra Tables 1 & 2. 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.162See supra Table 1. 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,163Alabama Human Life Protection Act, Ala. Code §§ 26-23-h-1 to -8 (2019); Tex. Health & Safety Code Ann. §§ 170.001–171.212 (West 2019); Unborn Child Protection from Dismemberment Abortion Act, W. Va. Code § 16-20-1 (2022); Wis. Stat. § 940.04 (2023). These laws do authorize abortion if the mother’s life is in danger. Abortion laws are constantly changing, however, and are subject to ongoing litigation. For example, in Fund Texas Choice v. Paxton, No. 1:22-CV-859-RP, 2023 WL 2558143 (W.D. Tex. Feb. 24, 2023), the court granted a preliminary injunction of the state’s pre-Roe abortion laws and held that Texas laws prohibiting abortion do not regulate abortions outside of the state of Texas. and the right to abortion is a necessary part of the claim.164See infra Sections II.B.1, II.B.2. 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.165See infra Sections II.B.1, II.B.2. 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.166Texas is the second largest state in the country with a population of 29,145,505. Wisconsin and Alabama are mid-sized states with populations of 5,893,718 and 5,024,279, respectively, and West Virginia’s population is 1,793,716. Texas, Wisconsin, Alabama, and West Virginia’s populations total 41,857,218. This figure divided by the total U.S. population (331,449,281) equals 12.6%. 2020 Population and Housing State Data, U.S. Census Bureau (Aug. 12, 2021), [].

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,167See supra Tables 1 & 2. as they all currently authorize wrongful birth claims. Arkansas, Idaho, Missouri, and Tennessee168See supra Tables 1 & 2. 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.169See supra Tables 1 & 2.

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.170See supra note 196. 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”).171See, e.g., Provenzano v. Integrated Genetics, 22 F. Supp. 2d 406 (D.N.J. 1998).

Previously, Texas courts presumed causation where plaintiffs alleged that they would have sought an abortion had they known about the fetus’s developmental disability.172Jacobs v. Theimer, 519 S.W.2d 846, 948 (Tex. 1975) ([W]e assume that Mrs. Jacobs could and would have terminated the pregnancy by lawful means . . . .”); Nelson v. Krusen, 678 S.W.2d 918, 928 (Tex. 1984) (Robertson, J., concurring) (“Since the parents allege that they would have sought an abortion had they known Mrs. Nelson was a genetic carrier of Duchenne muscular dystrophy, proximate cause must be presumed.”). 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.173See, e.g., Nelson, 678 S.W.2d at 919 (finding that a doctor negligently advised plaintiffs that they were not genetic carriers of muscular dystrophy). 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,174See id. 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.175See Fox, supra note 24, at 43 (“[Wrongful birth and wrongful life] actions tie harm to the lost chance to abort . . . .”); Greco v. United States, 893 P.2d. 345, 346 (Nev. 1995) (“[A] mother has a tort claim in negligent malpractice against professionals who negligently fail to make a timely diagnosis of gross and disabling fetal defects, thereby denying the mother her right to terminate the pregnancy.”). 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.176See Fox, supra note 7, at 152 (“Stigma associated with infertility, childlessness, and premarital sex keeps many of these mistakes in the shadows. Coming forward would reveal that victims had resorted to abortion, voluntary sterilization, or assisted reproduction.”). While abortion remains popular and arguably won the “culture war,”177See Linda Greenhouse, Opinion, Does the War over Abortion Have a Future?, N.Y. Times (Jan. 18, 2023), []. plaintiffs in conservative states may be nervous to make such a public proclamation. Dobbs subjects people who seek abortions to increased scrutiny and blame.178Dang Nguyen, Simar S. Bajaj, Danial Ahmed & Fatima Cody Stanford, Protecting Marginalized Women’s Mental Health in the Post-Dobbs Era, PNAS (Sept. 23, 2022), []. The majority in Dobbs proclaimed that Roe was “egregiously wrong from the start.”179Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2243 (2022). 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”180Id. at 2240. or “passionate and widely divergent”181Id. at 2242. 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,182See id. at 2318 (Breyer, Sotomayor & Kagan, JJ., dissenting) (“Enforcement of all these draconian restrictions will also be left largely to the States’ devices. A State can of course impose criminal penalties on abortion providers, including lengthy prison sentences. But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion.”). 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.183See supra Tables 1 & 2; Tracking the States, supra note 2.

In these states, negligent abortion cases may disappear altogether because many abortions will no longer be performed at all.184See Gianna Melillo, Legal Abortions Dropped 6 Percent in Months After Roe Was Overturned: Research, Hill (Oct. 31, 2022), []. 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.185See Diane E. Hoffmann, Physicians Who Break the Law, 53 St. Louis U. L.J. 1049, 1064 (2009). History gives an indication of what will come to pass: before Roe, people regularly violated laws prohibiting abortion.186Id. at 1067. 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).187Vincent R. Johnson, The Unlawful Conduct Defense in Legal Malpractice, 77 UMKC L. Rev. 43, 62–63 (2008). Alternatively, the court may find that holding the defendant negligent would violate public policy.188Barker v. Kallash, 459 N.Y.S.2d 296, 299 (N.Y. App. Div. 1983). And in wrongful pregnancy cases where the physician failed to diagnose the pregnancy and thus deprived the parent of their right to abortion,189See, e.g., Butler v. Rolling Hill Hosp., 555 A.2d 205 (Pa. Super. Ct. 1989). plaintiffs will face the same causation and injury problems as in wrongful birth cases.190See supra Section II.B.1.

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.191See Miller v. Johnson, 343 S.E.2d 301, 304 (Va. 1986) (“Within specified limits a woman is entitled to have an abortion if she so chooses. . . . Under traditional tort principles, it is clear that a physician who performs an abortion or sterilization procedure owes a legal duty to the patient.” (citations omitted)). 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.192See Bowman v. Davis, 356 N.E.2d 496, 499 (Ohio 1976) (“The choice not to procreate, as part of one’s right to privacy, has become (subject to certain limitations) a Constitutional guarantee. For this court to endorse a policy that makes physicians liable for the foreseeable consequences of all negligently performed operations except those involving sterilization would constitute an impermissible infringement of a fundamental right.” (citations omitted)). 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,193Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2301 (2022) (Thomas, J., concurring) (“For that reason, in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold . . . . Because any substantive due process decision is ‘demonstrably erroneous,’ we have a duty to ‘correct the error’ established in those precedents.” (citations omitted)). the case that recognized the fundamental right of married couples to use birth control194Griswold v. Connecticut, 381 U.S. 479 (1965). and more broadly stands for the right to choose not to procreate.195Joseph Blocher, Rights To and Not To, 100 Calif. L. Rev. 761, 798 (2012).

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.196See, e.g., Bowman, 356 N.E.2d at 499. The right not to procreate relies on the longstanding belief that an individual is sovereign over their own body.197I. Glenn Cohen, The Constitution and the Rights Not to Procreate, 60 Stan. L. Rev. 1135, 1156 (2008). Specifically, bodily autonomy protects the right not to be a gestational parent, as opposed to the legal or genetic parent.198Id. at 1138. In American constitutional law, this right was based on the abortion cases of Roe and Casey,199Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992), overruled by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022). and is arguably also grounded in the contraception cases of Griswold, Eisenstadt, and Carey.200Cohen, supra note 230, at 1148; Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972); Carey v. Population Servs. Int’l, 431 U.S. 678 (1977). Roe and Casey are now officially overturned,201Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2242 (2022) (“We hold that Roe and Casey must be overruled.”). 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.202Id. at 2301 (Thomas, J., concurring) (“[W]e should reconsider all of this Court’s substantive due process precedents, including Griswold . . . .”); id. at 2332 (Breyer, Sotomayor & Kagan, JJ., dissenting) (“If the majority is serious about its historical approach, then Griswold and its progeny are in the line of fire too.”). But see id. at 2277–78 (majority opinion) (“Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.”); id. at 2260 (“Griswold and Eisenstadt[] were critically different for a reason that we have explained: None of those cases involved the destruction of what Roe called ‘potential life.’ ”); id. at 2309 (Kavanaugh, J., concurring) (“I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents [including Griswold], and does not threaten or cast doubt on those precedents.”). 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.203See, e.g., Keel v. Banach, 624 So. 2d 1022, 1026 (Ala. 1993). Of the thirty-seven states that have authorized wrongful pregnancy claims, seven relied on Roe to some extent in their decisions.204Ochs v. Borrelli, 445 A.2d 883, 885 (Conn. 1982); Fulton-DeKalb Hosp. Auth. v. Graves, 314 S.E.2d 653, 654 (Ga. 1984); Sherlock v. Stillwater Clinic, 260 N.W.2d 169, 175 (Minn. 1977); Betancourt v. Gaylor, 344 A.2d 336, 339 (N.J. Super. Ct. Law Div. 1975); Lovelace Med. Ctr. v. Mendez, 805 P.2d 603, 612 (N.M. 1991); Bowman v. Davis, 356 N.E.2d 496, 499 (Ohio 1976); Miller v. Johnson, 343 S.E.2d 301, 304 (Va. 1986). In addition, one concurring opinion cited Roe. Boone v. Mullendore, 416 So. 2d 718, 725 (Ala. 1982) (Faulkner, J., concurring). Seven of the twenty-four states that allow wrongful birth claims similarly cited Roe.205Keel, 624 So. 2d at 1024; Rich v. Foye, 976 A.2d 819, 830 (Conn. Super. Ct. 2007); Haymon v. Wilkerson, 535 A.2d 880, 882 (D.C. 1987); Plowman v. Fort Madison Cmty. Hosp., 896 N.W.2d 393, 400 (Iowa 2017); Greco v. United States, 893 P.2d 345, 349 (Nev. 1995); Smith v. Cote, 513 A.2d 341, 344 (N.H. 1986); Harbeson v. Parke-Davis, Inc., 656 P.2d 483, 491 (Wash. 1983) (en banc).

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,206See Gleitman v. Cosgrove, 227 A.2d 689 (N.J. 1967). but it reversed course after Roe.207Hummel v. Reiss, 608 A.2d 1341, 1343–44 (N.J. 1992) (“After the Supreme Court’s decision in Roe v. Wade, which established a woman’s qualified right to terminate her pregnancy, this Court recognized causes of action of both parents and infants harmed by doctors’ negligence in failing to inform parents of conditions that would bear on informed choice regarding whether to carry the pregnancy to full term. In a trilogy of cases discussed below, we recognized causes of action for wrongful birth . . . and wrongful life . . . .” (citations omitted)). 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.208See Fox, supra note 7. States whose courts authorized a prenatal tort claim while holding that Roe was irrelevant to their decision209Cockrum v. Baumgartner, 447 N.E.2d 385, 391 (Ill. 1983); see Johnston v. Elkins, 736 P.2d 935, 939 (Kan. 1987); see also Dumer v. St. Michael’s Hosp., 233 N.W.2d 372, 377 n.6 (Wis. 1975) (authorizing a wrongful birth claim where the facts predated Roe). 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.210See Capron, supra note 51, at 635. Some courts held that public policy arguments against wrongful birth claims were not valid after Roe legitimized public policy that supported abortion.211Keel v. Banach, 624 So. 2d 1022, 1026 (Ala. 1993); Bowman v. Davis, 356 N.E.2d 496, 499 (Ohio 1976). 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,212The California Supreme Court recognized the right to abortion under its state constitution prior to Roe. People v. Belous, 458 P.2d 194 (Cal. 1969). The Alaska, Montana, Minnesota, and South Carolina Supreme Courts have held that their state constitutions protect the right to abortion. Valley Hosp. Ass’n v. Mat-Su Coal. for Choice, 948 P.2d 963 (Alaska 1997); Armstrong v. State, 989 P.2d 364 (Mont. 1999); Women of the State v. Gomez, 542 N.W.2d 17 (Minn. 1995); Planned Parenthood of S. Atl. v. State, 822 S.E.2d 770 (S.C. 2023). The Florida Supreme Court recognized the right to abortion, but in 2022, the Florida legislature enacted a fifteen-week ban that is currently being challenged. In re T.W., 551 So. 2d 1186 (Fla. 1989); Fla. Stat. § 390.0111 (2023). Colorado, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Nevada, New York, Oregon, Rhode Island, and Washington state laws protect abortion. Colo. Rev. Stat. 25-6-403 (2022); Del. Code Ann. tit. 24, § 1790 (2017); Haw. Rev. Stat. § 453-16 (1970); 775 Ill. Comp. Stat. 55 (2019); Me. Stat. tit. 22, § 1598 (1979); Md. Code Ann., Health-Gen. § 20-103 (West 2020); Mass. Gen. Laws ch. 112, §§ 12k to 12r (2020); Nev. Rev. Stat. § 442.250 (1973); N.Y. Pub. Health Law § 2599-AA, 2599-BB (McKinney 2019); Or. Rev. Stat. § 659.880 (2017); 23 R.I. Gen. Laws § 23-4.13-2(2019); Wash. Rev. Code § 9.02.100 (2022). Michigan voters put the right to abortion into the state constitution after Dobbs. Alice Miranda Ollstein, Michigan Votes to Put Abortion Rights into State Constitution, Politico (Nov. 9, 2022, 3:43 AM), []. Kansas voted after Dobbs to retain its constitutional abortion protections. Mitch Smith & Katie Glueck, Kansas Votes to Preserve Abortion Rights Protections in Its Constitution, N.Y. Times (Aug. 2, 2022), []. 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[].”213Dobbs did not make abortion legal or illegal; rather, it left its legality up “to the people’s elected representatives.” Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2243 (2022); id. at 2310 (Kavanaugh, J., concurring) (“The Court’s decision today properly returns the Court to a position of judicial neutrality on the issue of abortion . . . .”).

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.”214Saenz v. Roe, 526 U.S. 489, 500 (1999). Courts widely recognize this right.215I. Glenn Cohen, Melissa Murray & Lawrence O. Gostin, The End of Roe v. Wade and New Legal Frontiers on the Constitutional Right to Abortion, 328 J. Am. Med. Ass’n 325 (2022); see also Shapiro v. Thompson, 394 U.S. 618, 629 (1969) (“This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal liberty unite to require that all citizens be free to travel throughout the length and breadth of our land . . . .”); Smith v. Turner, 48 U.S. 283, 492 (1849) (“For all the great purposes for which the Federal government was formed, we are one people, with one common country. We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.”). 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.216Dobbs, 142 S. Ct. at 2309 (Kavanaugh, J., concurring) (“[M]ay a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”).

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 fund217See, e.g., Nat’l Network of Abortion Funds, []. or their employer.218Emma Goldberg, These Companies Will Cover Travel Expenses for Employee Abortions, N.Y. Times (Aug. 19, 2022), []. 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.219Cohen et al., supra note 248. 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,220See supra note 205. 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.221When abortion was legal in Texas, the state had restrictions such as a mandatory waiting period, required sonogram, and limitations on who could be an abortion provider. Additionally, standard health insurance plans did not cover abortion. A Recent History of Restrictive Abortion Laws in Texas, ACLU of Tex., [].

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,222See, e.g., Garrison v. Med. Ctr. of Del. Inc., 581 A.2d 288 (Del. 1989) (allowing wrongful birth claim where plaintiff did not receive testing to reveal fetus’s Down Syndrome diagnosis until the third trimester, after the state’s second trimester abortion deadline). or after the child was born, if prenatal testing was never performed.223See, e.g., Rich v. Foye, 976 A.2d 819, 830 (Conn. Super. Ct. 2007). 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.224OB/GYN Specialists of the Palm Beaches, P.A. v. Mejia, 134 So. 3d 1084, 1086 (Fla. Dist. Ct. App. 2014). 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.225Id. at 1086–87. The trial court prohibited defendants from making this argument, reasoning that the mother could have traveled out of state for an abortion.226Id. at 1087. 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.227Id. at 1091. 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.228Rachel K. Jones et al., Medication Abortion Now Accounts for More than Half of All US Abortions, Guttmacher Inst. (Feb. 24, 2022), []. The FDA approved this medication twenty-three years ago229Devan Cole, What to Know About the Lawsuit Aiming to Ban Medication Abortion Drug Mifepristone, CNN (Mar. 13, 2023, 5:15 PM), []. and currently allows it to be sent by mail,230Pam Belluck, F.D.A. Will Permanently Allow Abortion Pills by Mail, N.Y. Times (Dec. 16, 2021), []. 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.231Davis S. Cohen, Greer Donley & Rachel Rebouché, Abortion Pills, 76 Stan. L. Rev. (forthcoming 2024) (manuscript at 41), []. 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.232Attorney General Merrick B. Garland Statement on Supreme Court Ruling in Dobbs v. Jackson Women’s Health Organization, U.S. Dep’t of Just. (June 24, 2022), []; Lauren Collins, The Complicated Life of the Abortion Pill, New Yorker (July 5, 2022), []. In January 2023, a mifepristone drug manufacturer filed a lawsuit in West Virginia challenging the state’s abortion ban based on this preemption theory. Cohen et al., supra note 264 (manuscript at 48). On the same day, an abortion provider challenged North Carolina’s law that permits abortion but that places restrictions on mifepristone that the FDA does not require, again based on preemption theory. Id. Preemption theory could exempt Mifepristone from abortion bans or at least protect Mifepristone from state overregulation,233Cohen et al., supra note 264 (manuscript at 48). but preemption theory did not stop Wyoming from becoming the first state to outlaw abortion pills.234David W. Chen & Pam Belluck, Wyoming Becomes First State to Outlaw the Use of Pills for Abortion, N.Y. Times (Mar. 17, 2023), [].

The existence of a right to medication abortion is contested and likely to be subject to ongoing litigation.235See, e.g., Christine Vestal, Abortion Medications Set to Become Next Legal Battlefield, Pew Charitable Trs. (July 13, 2022, 12:00 AM), []; Abbie VanSickle, Supreme Court Ensures, for Now, Broad Access to Abortion Pills, N.Y. Times (Apr. 21, 2023), []. 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.236VanSickle, supra note 268; Complaint at 3, 55, All. for Hippocratic Med. v. U.S. Food & Drug Admin., No. 2:22-cv-00223-Z, 2023 WL 282571 (N.D. Tex. Apr. 7, 2023). If the plaintiffs prevail here, it will become illegal for the manufacturer to sell medication abortion nationwide, even in states where it is legal,237Cohen et al., supra note 264 (manuscript at 12–13). as FDA approval is required by law.238Unapproved Drugs, U.S. Food & Drug Admin. (June 2, 2021), []. 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.239Pam Belluck, Lawyers to Face Off Before Judge in Closely Watched Abortion Pills Case, N.Y. Times (Mar. 15, 2023), [].

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); 240How Soon Can You Tell You’re Pregnant?, Cleveland Clinic (Sept. 28, 2022), []. (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,241The Abortion Pill, Planned Parenthood, https://www.plannedparent- [].
while fetal health screenings do not occur until eleven to thirteen weeks at the earliest, and some tests not until the second trimester.242Diagnosis, Ctrs. for Disease Control & Prevention,

ddd/birthdefects/diagnosis.html [].
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.243See Aatish Bhatia, Claire Cain Miller & Margot Sanger-Katz, A Surge of Overseas Abortion Pills Blunted the Effects of State Abortion Bans, N.Y. Times: TheUpshot (Nov. 1, 2022), []. 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).244Fox, supra note 7, at 153. 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.245See id. at 153–54, 168. 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”246Id. at 187. or “negligently confounded” procreation.247Id. at 201. 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.”248Id. at 188. Alternatively, the injury could be framed as “the loss of what the plan meant to produce.”249Sanger, supra note 75, at 36, 38 (“I am suspicious of the claim that control is really at the heart of the matter. I think disappointed plaintiffs as a factual matter are distressed that they didn’t get what they bargained and paid for—competent medical treatment—toward a reproductive goal.”). 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.”250Id. at 46. 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.251See supra Section II.B. 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.252See supra Section I.C. 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.253As of a 2022 poll, 61% of U.S. adults believe abortion should be legal in most or all cases, and 37% believe that it should be illegal in all or most cases. Hannah Hartig, About Six-in-Ten Americans Say Abortion Should Be Legal in All or Most Cases, Pew Rsch. Ctr. (June 13, 2022), []. There has been strong pushback to Dobbs, even in certain conservative states.254See, e.g., Alice Miranda Ollstein, Kansas Voters Block Effort to Strip Abortion Protections from State Constitution, Politico (Aug. 3, 2022, 6:30 PM), []; Sarah McCammon, Kentucky High Court Upholds State Abortion Bans While Case Continues, NPR (Feb. 16, 2023, 11:18 AM), [].

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.255See Bal, supra note 70, at 341. Being an out-of-state litigant is not necessarily more expensive or burdensome for the plaintiff.256See Daniel Klerman, Rethinking Personal Jurisdiction, 6 J. Legal Analysis 245, 250–53 (2014). 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.257See, e.g., Allison McCann, What It Costs to Get an Abortion Now, N.Y. Times (Sept. 28, 2022), []. Cross-border travel, born out of necessity, is already a common practice for abortions post-Dobbs for those who can manage it.258For example, abortion providers in Colorado and Oklahoma have seen the number of patients traveling from Texas increase 1000% and nearly 2500% compared to previous years, respectively. Oriana González, Texans Overwhelmingly Traveled Out-of-State to Get Abortions After Ban Took Effect, Axios (Mar. 5, 2022), []. Illinois abortion providers regularly treat patients from the border states of Wisconsin, Missouri, and Kentucky, as well as those from Ohio, Tennessee, and Texas. Angie Leventis Lourgos, Abortions in Illinois for Out-of-State Patients Have Skyrocketed, Detroit News (Aug. 4, 2022, 2:36 PM), []. Maryland clinics provide care to patients from the neighboring states of Virginia and West Virginia, plus other further states. Abby Zimmardi, Maryland Becomes Haven for Out-of-State Abortion Seekers, Providers, Cap. News Serv. (Sept. 15, 2022), []. Genetic counseling may be provided virtually by a counselor in another state.259Wendy R. Uhlmann, Andrew J. McKeon & Catharine Wang, Genetic Counseling, Virtual Visits, and Equity in the Era of COVID‐19 and Beyond, 30 J. Genetic Counseling 1038 (2021).

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.


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.