By Yvonne Lindgren
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 regulating abortion to the states. In the post-Dobbs landscape, thirteen states have banned abortion, either through laws passed after the decision, through trigger laws, or by reviving pre-Roe era abortion bans. As a result of criminalizing abortion, the protective function of medical malpractice law is supplanted by provider and institutional decision-making driven by the imperative to avoid criminal liability and loss of licensure. This essay argues that abortion bans have made all reproductive health care less safe, and that these new pregnancy-related dangers will disproportionately impact assisted reproduction, because those who conceive through assisted reproduction often face a higher risk of complications needing medical intervention, and because women may be reluctant to act as surrogates in light of the heightened risk of pregnancy.
Abortion is the standard of care for a series of reproductive health issues, including for ectopic pregnancy and miscarriage, and is the recommended course of treatment for patients with a pregnancy in which a fetus will not survive outside the womb. Doctors in states with abortion bans have been forced to delay treatment when a pregnant person presents in their examination rooms in the process of miscarrying but where a fetal heart tone is still present. States’ broadly worded “emergency” exceptions have proven inadequate to give guidance as to when an abortion is appropriate. Research of Catholic hospitals reveals that abortion restrictions force doctors to delay care or transfer miscarrying patients to other hospitals. A study published by the American Journal of Obstetrics and Gynecology found that after only one year in effect, Texas’s SB8 has led to an average nine days of delay in treatment and worse health outcomes for patients who are forced to seek abortion care in another state.
Civil damage awards are designed to deter negligence through the threat of potential liability. However, harsh criminal penalties motivate doctors and hospital counsel to make decisions that prioritize avoiding their own potential criminal liability rather than to act non-negligently and face civil damages. In Texas, the criminal penalty is up to life in prison for a doctor who violates the state’s abortion ban. What is more, state legislatures in abortion restrictive states like Missouri have passed “conscientious refusal” laws that insulate providers from civil liability for failing to provide abortions. Criminal bans may provide an added layer of insulation from civil liability; doctors may assert the state’s abortion ban as their defense when a patient receives negligent care. Statutes that insulate providers from civil liability for failure to provide or refer a patient for abortion care coupled with severe criminal liability for violating a state’s abortion ban work in concert to effectively make abortion unavailable in abortion restrictive states, even those that are medically necessary.
Patients who turn to assisted reproductive care may be disproportionately impacted because their pregnancies may be at higher risk and more likely to require intervention. For example, pregnancy loss in natural conception is reported to be between 10-16% while loss of pregnancies in the United States conceived through ART may be as high as 29%. Women who conceive via IVF also have an increased risk of stillbirth and a six-fold increased risk of placenta previa compared with naturally conceived pregnancies. In addition, decreased access to medically necessary abortion care may deter women from acting as surrogates; their reproductive health care may unduly expose them to risk of harm if doctors are unwilling to provide abortion care to save their health or life. While a person may be willing to undertake such risk for their own child, they may not be willing to expose themselves to heightened risk for compensation, especially as they are likely already parenting.
Criminal bans undermine the protective function of tort law to deter negligence in the provision of reproductive health care. Criminal abortion bans undermine plaintiffs’ ability to bring suit for medical negligence when harmed by a provider who refuses or delays necessary treatment for fear of violating a state’s abortion ban. Vague “emergency” exceptions fail to offer meaningful guidance to providers and statutory protections for civil liability leave patients vulnerable. The vagueness in emergency exceptions may cause providers to prioritize avoiding criminal liability and loss of licensure over patient care and avoiding medical malpractice.
In short, when confronted with the possible outcomes that could flow from a mistake, the draconian penalties in criminal bans skew providers to err on the side of avoiding criminal liability, even at the cost of patient wellbeing. As a result, these laws make reproductive healthcare less safe for all pregnant people, not solely those seeking abortion to terminate pregnancy, and may have particularly dire consequences for women who require assisted reproductive technologies such as IVF or surrogacy.
Yvonne Lindgren is an Associate Professor of Law at the University of Missouri-Kansas City School of Law.
