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

Authors

Aviva K. Diamond, University of Michigan Law School

Abstract

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.

Recommended Citation

Aviva K. Diamond, The Impact of Post-Dobbs Abortion Bans on Prenatal Tort Claims, 122 Mich. L. Rev. 371 (2023).
Available at: https://repository.law.umich.edu/mlr/vol122/iss2/5