Lifesaving Care, Denied†

Across the post-Dobbs United States, reports of pregnant people battling infections as severe as sepsis, experiencing hemorrhaging, and suffering from other pregnancy complications in hospital emergency rooms are flooding the news. Because of state abortion bans’ lack of clarity about medical exceptions and the overall chilling effect on abortion care, many patients are being denied the emergency care that they need or are being forced to wait until they are knocking on death’s door before medical staff can treat them. Healthcare professionals who work in states with criminal abortion bans face an impossible scenario that scholars have termed the “double abortion bind”: the impossible choice between, on the one hand, providing patients with emergency lifesaving abortions and facing potential criminal liability for violating their state’s abortion ban and, on the other hand, not providing emergency abortions and potentially losing their patients and facing medical malpractice claims for violating the standard of care. Litigators nationwide are fighting in state courts to clarify the medical exceptions in abortion bans. This Note asks what role tort claims—specifically, medical malpractice suits—can play in the area of emergency abortion access. Can torts realistically provide useful legal recourse for impacted patients and apply new pressure on healthcare industry actors to widen emergency abortion access?