Reclaiming Tort Law to Protect Reproductive Rights

52 Pages Posted: 2 May 2023 Last revised: 10 Jul 2023

See all articles by Yvonne Lindgren

Yvonne Lindgren

University of Missouri-Kansas City School of Law

Nancy Levit

University of Missouri at Kansas City - School of Law; University of Missouri at Kansas City - School of Law

Date Written: May 2, 2023

Abstract

In Dobbs v. Jackson Women’s Health, the Supreme Court overruled Roe v. Wade, the constitutional floor that had protected the abortion right for nearly fifty years, and returned the issue of abortion to the states to regulate, restrict, criminalize, or protect at the state-level. In the post-Roe era, states are increasingly turning to private law to restrict travel, access to medical care, and undermine privacy of individuals seeking abortion. Three states have passed antiabortion civil enforcement “bounty” provisions patterned on Texas’s SB8 that allows private citizens to sue providers or third parties who aid and abet an abortion that violates the state’s six-week ban. At least half a dozen states have signaled that they will pass their own civil bounty antiabortion provisions. Other states, such as Missouri, have introduced legislation that would permit any private citizen to sue anyone who helps a pregnant person travel out of state to obtain an abortion. Aggressive protesting at abortion clinics and surveillance of out-of-state license plates and people entering abortion clinics have also been on the rise as private citizens take up the charge of enforcing state antiabortion laws. Under this private law scheme, pregnant bodies become politicized legal subjects to be disciplined and surveilled by the public to enforce a state’s policy agenda without constitutional and civil law protections.

This Article argues that the use of private law to enforce abortion bans — a function that had been previously exclusively patrolled through public law — is antithetical to the purpose and function of private law to protect individuals from tortious harms by third parties. Private law is designed to compensate individuals for harms and to protect the community more broadly by discouraging individuals from engaging in harmful behavior through the deterrent force of damage awards. However, civil enforcement regimes are eroding the boundary between public and private law and exposing people to private harms through state capture of private law. These civil provisions are often coupled with criminal enforcement regimes that deprive pregnant persons of necessary medical care. Rather than protect individuals from privacy invasions by third parties, these laws incentivize the surveillance and privacy intrusions that will necessarily result from the regime of private enforcement and aggressive protesting at abortion clinics. Thus, in the post-Roe landscape, abortion patients and providers have lost both constitutional protection and private law’s protection against harms inflicted by private actors. This Article sets forth a framework to both reassert tort law’s function to offer protection against privacy invasions by third parties and restore private law’s role in expressing normative values of the community — rather than of the state — that rests at the heart of a private law regime.

It is a critical moment to challenge the emerging trend of state capture of private law and reestablish private law’s traditional role to guard against privacy intrusions by third parties. Torts such as intrusion upon seclusion, public disclosure of private facts, infliction of emotional distress, and federal civil rights violations, as well as tort claims for providers such as interference with prospective business relations and civil RICO to name only a few may serve to reclaim private law’s primary purpose to protect individuals from infringement by third parties. Shielding abortion patients and providers from surveillance, detection, and violations of medical privacy may limit overreach by bounty hunters and protestors. More importantly, it will reclaim private law’s role to protect individuals and providers in the constitutional vacuum left in the wake of Dobbs.

Keywords: abortion, tort law, privacy, Dobbs, Roe

Suggested Citation

Lindgren, Yvonne and Levit, Nancy, Reclaiming Tort Law to Protect Reproductive Rights (May 2, 2023). Alabama Law Review, Vol. 75, 2023, Available at SSRN: https://ssrn.com/abstract=4435834 or http://dx.doi.org/10.2139/ssrn.4435834

Yvonne Lindgren (Contact Author)

University of Missouri-Kansas City School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

Nancy Levit

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

University of Missouri at Kansas City - School of Law ( email )

5100 Rockhill Road
Kansas City, MO 64110-2499
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
147
Abstract Views
665
Rank
373,523
PlumX Metrics