Recalibrating Risk Under Dobbs
45 Pages Posted: 5 Nov 2024 Last revised: 3 Feb 2025
Date Written: January 31, 2025
Abstract
The impact of Dobbs-era abortion bans has been revealed in countless stories of pregnant patients who have sought care for pregnancy related complications, but died or been injured after their doctors refused to intervene for fear they might be prosecuted. Several years into the U.S. experiment with criminalizing abortion, there is little certainty about the scope and applicability of state abortion bans. For clinicians, this uncertainty, coupled with the high stakes of criminal liability, has triggered a broad-scaled retreat from the pre-Dobbs standard of care when treating pregnant patients. In the absence of carefully crafted guidelines from lawmakers, courts, or state medical boards, fear of criminalization has created a broad yellow-light zone, in which a clinician’s willingness to provide care no longer turns exclusively on the largely national professional standard of care. Instead, it also depends on a doctor’s personal risk tolerance. When clinicians’ fear of legal consequences causes them to delay or deny medically indicated care, they shift the risk of harm onto their patients, who are being injured.
This Article is the first to examine how abortion bans necessarily implicate questions of medical malpractice. We begin by documenting how abortion bans have unsettled the standard of care, leading to patient injuries that, as yet, have gone uncompensated. It examines these injuries through the lens of tort law, describing the theoretical potential of medical malpractice litigation to compensate injured plaintiffs while at the same time serving the “public law” function of drawing a floor beneath competent care, thereby helping clarify the otherwise uncertain standard of care. The analysis explains why, in practice, malpractice lawsuits are unlikely to deliver on either of these promises, and may trigger downstream harm. The Article then identifies four strategies for recalibrating the risk calculus driving the diminished quality of care currently provided to pregnant patients in ban states. Each proposal is designed to press hospitals, health systems and professional societies into taking action to support and guide clinicians so as to maximize their ability to provide competent, ethical care within the bounds of the law.
Suggested Citation: Suggested Citation