Lifesaving Care, Denied†

Across the post-Dobbs United States, reports of pregnant people battling infections as severe as sepsis,[1] experiencing hemorrhaging, and suffering from other pregnancy complications in hospital emergency rooms are flooding the news.[2] Even in states like California, which has some of the nation’s strongest abortion protections, some hospitals are still denying pregnant patients the emergency abortion care they so desperately need.[3] 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. Some patients are being airlifted to out-of-state hospitals for treatment elsewhere, and many who are forced to wait until their health deteriorates are taking matters into their own hands and choosing to travel out-of-state—often at great health risk—if they have the means.

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. While legal scholars have explored criminal liability and the various implications of criminal abortion bans for patients and medical professionals, the civil liability component—including that of medical malpractice lawsuits—remains murkier, in part due to a dearth of such cases. But as more and more patients suffer and die while waiting for emergency medical care or are denied such care altogether, civil cases are beginning to emerge.

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? This Note analyzes whether such claims could be used to pressure hospital systems into broadening emergency access to lifesaving abortion care and sketches one potential path forward.

†           The title “Lifesaving Care, Denied” is inspired by the work of If/When/How, specifically, the “Self-Care, Criminalized: August 2022 Preliminary Findings Report,” by Laura Huss, Farah Diaz-Tello, and Goleen Samari. If/When/How: Lawyering for Reprod. Just., Self-Care, Criminalized: August 2022 Preliminary Findings (2022), https://ifwhenhow.org/wp-content/uploads/2023/06/22_08_SMA-Criminalization-Research-Preliminary-Release-Findings-Brief_FINAL.pdf [https://perma.cc/U72M-A49Y].

Table of Contents Show

Introduction

In August 2022, Texas resident Amanda Zurawski was seventeen weeks pregnant.[4] After undergoing eighteen months of fertility treatment, she and her husband were “beyond thrilled.”[5] The couple had decided to name their daughter Willow.[6] On August 23, 2022, Zurawski contacted her obstetrician after experiencing unexpected pregnancy-related symptoms.[7] She was diagnosed with a cervical condition and was told that the loss of her pregnancy was inevitable.[8] Zurawski was sent home, devastated from the news, and her water broke that night.[9] She rushed to the emergency room.[10] Zurawski had experienced previable preterm premature rupture of membranes (PPROM).[11] Because Zurawski was only seventeen weeks pregnant, even if she had gone into labor, the fetus would not have survived.[12]

Abortions in Texas were criminally prohibited at the time and remain so today. At this point in her treatment, and in a different state where abortion was legal, Zurawski would have been offered an abortion.[13] But because of Texas’s abortion laws—which had taken effect a mere two days before Zurawski’s water broke—her healthcare team was terrified that providing her an abortion without signs of acute infection could run afoul of the state’s legal exceptions for a lifesaving abortion.[14] Zurawski was left with no other choice but to wait until she delivered a preterm, nonviable fetus—at the risk of developing a life-threatening infection along the way. Her doctors felt that they could not intervene as long as a fetal heartbeat was present; they would need to wait until she became “sick enough for the ethics board at the hospital to consider [her] life at risk.”[15]

After her doctors had her wait in the hospital overnight hoping she would go into labor on her own, Zurawski was sent home with instructions to monitor herself for signs of infection.[16] After three days of physical and psychological agony, she took a turn for the worse.[17] When she developed a raging fever, dangerously low blood pressure, and became nonresponsive, her husband rushed her to the hospital.[18] She had developed sepsis and was admitted to the Intensive Care Unit (ICU).[19] She delivered Willow, who inevitably did not survive.[20] Zurawski remained in the ICU for three days, battling infections and septic shock.[21] Though she survived, the infections left Zurawski with such severe scar tissue in her uterus and reproductive organs that one of her fallopian tubes remains permanently closed—an outcome that would likely have been avoided had she received a timely abortion.[22] Zurawski longed to have children, and it is now unclear whether she will ever be able to become pregnant again. Unfortunately, Zurawski is not alone: PPROM occurs in approximately 2 to 3 percent of pregnancies in the United States.[23]

Zurawski went on to become the lead plaintiff in the Center for Reproductive Rights’ case against the State of Texas, which asked Texas to clarify the scope of “medical emergency” exceptions under its abortion bans. In May 2024, the Texas Supreme Court unanimously ruled against Zurawski and her nearly twenty co-plaintiffs, holding that the medical exceptions in Texas’s law were broad enough to withstand constitutional challenge and refusing to clarify them.[24]

Nationwide, people facing pregnancy complications who live in (or travel through) states where abortion is prohibited by criminal statutes (banned states) risk permanent injury or death as a direct result of abortion bans.[25] While anti-abortion lawmakers claim that the medical emergency exceptions included in abortion bans (ban statutes) are more than sufficient to protect pregnant individuals,[26] the numerous lawsuits demanding clarification of those exceptions tell a different story.[27] Maternal mortality rates were already rising in the United States before the Dobbs decision.[28] Meanwhile, abortion bans only exacerbate death rates among pregnant people.[29] Moreover, maternal mortality statistics reflect deep inequities nationwide: Outcomes for Black and Native American people are consistently far worse than those of their white counterparts.[30] While many of the plaintiffs in Zurawski ultimately had the resources to travel out of state and receive care, those who remain the most impacted by abortion bans are marginalized communities: Black, Brown, and Native people; low-income individuals; and undocumented people.[31] These groups bear the brunt of the violence that abortion bans inflict, and the stories of these pregnant people are also the least likely to be told in mainstream media. While a handful of tales make national headlines, too many other stories fall through the cracks due to the enormous disparities along lines of race, class, and immigration status. Many of those stories only make their way to mainstream media because of dedicated investigative journalists.[32]

The risks that pregnant people face in banned states are only amplified for pregnant members of marginalized communities. For many of these individuals, access to any kind of healthcare is already often shaky due to a myriad of factors, including lack of health insurance[33] and resulting lack of access to prenatal care,[34] fear of deportation,[35] the need to work several jobs to make ends meet[36] without paid leave,[37] and lack of access to adequate transportation[38] or childcare.[39] Consider the story of Josseli Barnica, a Houston resident and immigrant from Honduras. After miscarrying her second child, Barnica languished in a hospital bed for an agonizing forty hours because doctors refused to provide her with lifesaving care until no fetal heartbeat was detected.[40] She subsequently developed sepsis and died.[41] Her husband, an immigrant from El Salvador, is now tasked with raising the couple’s four-year-old daughter with the help of his late wife’s younger brother.[42]

While the harms that Zurawski suffered due to abortion bans remain horrific and by no means merit minimizing, she is a white woman who had the means to pay for costly fertility treatments and who became a nationally recognized figure after Time named her one of its 2024 Women of the Year.[43] She was also featured prominently in a documentary titled Zurawski v Texas, whose executive producers included the likes of Jennifer Lawrence and Hillary and Chelsea Clinton.[44] Most of the plaintiffs in her case appear to be white women who have American citizenship or valid immigration status, which is of course no accident: Thrusting oneself into the public sphere in a state as hostile to abortion as Texas quite nearly requires having such protections.[45] Yet while Zurawski attends Time’s Women of the Year gala, Barnica’s husband is quietly left to raise a child on his own while he works twelve-hour shifts at a construction site.[46]

While the Zurawski case and its counterparts represent important battles in the fight to save the lives of pregnant people and prevent the needless suffering of future patients, such cases take time to move through the courts and come with no guarantee of success.[47] Though they serve an important function within the court of public opinion, considering alternate routes of litigation is also key—especially as a nationwide assault on basic reproductive healthcare continues.[48]

As access to abortion care,[49] birth control,[50] and comprehensive sexual education[51] diminishes, outcomes for pregnant people in states with existing restrictions grow increasingly dire by the minute.[52] In Texas, after the state banned abortion in 2021, the rate of sepsis for women hospitalized for pregnancy loss in their second trimester spiked by over 50 percent and “dozens more pregnant and postpartum women died in Texas hospitals than had in pre-pandemic years.”[53] While the national maternal mortality rate declined, Texas’s rose substantially.[54] This comes as no surprise; sepsis-linked maternal deaths are a hallmark consequence of abortion criminalization worldwide.[55] And even though many pregnant individuals who have suffered delayed or denied abortions do not end up dead, their injuries are staggering: severe illness with the risk of serious infection;[56] fertility loss from permanent reproductive scarring and loss of reproductive organs;[57] or lasting trauma from, say, being told to wait in a hospital parking lot while sick and bleeding.[58] Given the gravity of this plainly preventable public health emergency, it is imperative that reproductive health advocates consider the potential merits of alternative approaches to litigation. The legal strategies utilized by traditional pro-choice organizations, such as federal impact litigation, may no longer be equipped for the post-Dobbs crisis in American reproductive healthcare.[59]

While tort claims have not traditionally been a weapon in the arsenal of the pro-choice movement,[60] would-be plaintiffs in emergency abortion situations have stories akin to those of traditional medical malpractice cases. Plaintiffs in the most severe instances, like Barnica’s case, may have legitimate wrongful death claims.[61] Within the healthcare space as a whole, medical professionals are clearly grappling with the possibilities of medical malpractice suits related to abortion bans, but medical malpractice insurers have remained largely silent regarding coverage for physician liability stemming from delayed and denied emergency abortions.[62]

Moreover, medical malpractice claims are only just beginning to emerge[63] from the numerous cases of pregnant people nationwide being turned away from lifesaving abortion care.[64] At the time of this Note’s writing, three patient plaintiffs who were forced to suffer denials or delays of lifesaving emergency abortions—Anna Nusslock, Rachel Harrison,[65] and a Jane Roe—have pending lawsuits in California against the hospitals and staff from whom they sought treatment.[66] While all three complaints allege intentional infliction of emotional distress and negligent infliction of emotional distress, only one alleges medical malpractice.[67] The defendants in all three cases are Catholic-affiliated hospital systems, which must adhere to the Ethical and Religious Directives for Catholic Health Services developed by the United States Conference of Catholic Bishops.[68] Those directives state: “Every procedure whose sole immediate effect is the termination of pregnancy before viability is an abortion . . . . Catholic health care institutions are not to provide abortion services . . . .”[69] Litigation is ongoing, but it is likely that more cases of this nature will follow.

This Note explores whether plaintiffs can successfully use tort claims to seek compensation for both physical and emotional harm and to pressure hospital systems, insurance companies, and policymakers to broaden emergency access to lifesaving abortion care. Part I provides an overview of the U.S. medical malpractice landscape generally, including the requirements plaintiffs must meet to successfully bring a medical malpractice suit and the particular challenges and opportunities presented by tort claims relating to lifesaving emergency abortions. Part II explores potential routes for successful tort litigation that injured patients like Zurawski might employ, focusing on the theory of corporate negligence to target institutional healthcare players with resources and power rather than individual physicians caught in the crosshairs. Part III discusses potential challenges with and counterarguments against using tort claims and corporate negligence doctrine as litigation tools. Finally, Part IV explores this proposed legal strategy in the context of both the anti-abortion movement and the reproductive justice movement. This Note concludes that combining medical malpractice torts with a theory of corporate negligence is the strongest path for signaling to hospitals and lawmakers that abortion bans only serve to put pregnant people in harm’s way and threaten the doctor-patient relationship. Litigators interested in abortion access advocacy should pursue creative legal strategies in this space; innovative lawyering is needed now more than ever.

I. U.S. Medical Malpractice Claims & Emergency Abortion Access

A. Medical Malpractice, Generally

U.S medical malpractice law originates from English common law.[70] This field of law offers recourse to patients who have suffered injuries due to negligent medical care. However, medical malpractice suits are contentious: For many in the healthcare field, medical malpractice conjures mental images of plaintiffs filing frivolous claims against physicians who practice medicine in a heavily litigious country.[71] But, at its core, the overarching social goal of medical malpractice remains the improvement of the medical field through (1) deterrence of unsafe practices; (2) compensation of patients injured through negligence; and (3) exacting corrective justice.

The heart of U.S. medical malpractice law is the tort of negligence.[72] Medical negligence claims are defined by a physician’s failure to provide a patient with the degree of care that a reasonable physician in the same position would have afforded the same patient.[73] Medical malpractice law exists in contrast to the nonpunitive patient safety movement, and yet both seek to better the experiences of individuals in the American healthcare system. On one hand, trial attorneys believe that the threat of litigation increases patient safety by creating incentives for healthcare organizations to pay attention to the quality of the healthcare they provide.[74] On the other hand, the patient safety movement espouses a “nonpunitive, systems-oriented, cooperative” approach to advocating for patients.[75] The patient safety movement, which began gaining traction in the late 1990s, advocates for change within the healthcare field with the goal of achieving zero patient deaths caused by preventable patient harm each year.[76] The movement’s values include creating a culture of safety and transparency. It uses a “holistic approach,” working with a variety of stakeholders (such as doctors, patients, and policymakers) to shift practices towards streamlined processes that use evidence-based practice blueprints to help minimize medical errors.[77]

Despite tensions between medical malpractice law and the patient safety movement, the notion of “preventable” error remains central to both: The patient safety movement seeks to prevent harms before they happen, and medical malpractice law seeks to punish and obtain compensation for harms that have already occurred. Yet although the concepts of human error or lack of good judgment lie at the heart of both approaches, the reputation of medical malpractice among healthcare professionals remains generally negative: Many doctors, already stretched thin, are (understandably) hostile to the added burdens of lawsuits and second-guessing of their professional judgment.[78] In considering whether to introduce medical malpractice into the area of lifesaving abortions, it is impossible to avoid the clash between these two schools of thought, in part because of the real impact of both on healthcare professionals and patients.

Proponents of medical malpractice litigation argue that it is a critical means of redress for the injured patient who seeks compensation and offers the ability to hold healthcare professionals accountable for their errors or lack of care.[79] However, some of the field’s critics argue that medical malpractice litigation only incentivizes “secrecy and blame” and criticize its approach as “punitive, individualistic, [and] adversarial.”[80]

Despite these critiques, however, medical malpractice is an unavoidable feature of the healthcare field today. While medical malpractice claims remain rare on the patient side—one 1991 study found that less than 2 percent of individuals harmed by a negligent medical error actually pursued malpractice claims[81]—researchers estimate that around a third of physicians have had a malpractice claim filed against them at least once in their careers.[82] Certain specialties—particularly those involved in crisis management—face more litigation than their peers. For example, more than 75 percent of emergency department physicians will be named in a medical malpractice suit at least once by the end of their careers;[83] OB-GYNs and surgeons are the two categories of specialists most likely to be sued.[84]

The higher likelihood of medical malpractice suits among reproductive health providers compared to other medical professions is likely linked to the longstanding dangers of being pregnant in the United States,[85] which existed well before abortion bans exacerbated those risks and narrowed access to reproductive care. The United States has historically had one of the highest—if not the highest—maternal mortality rates among wealthy countries: In 2022, the United States had approximately 22 maternal deaths for every 100,000 live births, while for the same number of live births, Switzerland had approximately 1 death, and Sweden, the Netherlands, Japan, Germany, and Australia all had between 2 and 4 deaths.[86] Race is also a crucial component of deadly outcomes for pregnant Americans: The rate for Black maternal mortality in the United States in 2022 was a staggering 49.5 deaths for every 100,000 live births, while the corresponding white maternal mortality rate was 19 deaths.[87]

Traditionally, medical malpractice litigation has been left within the regulatory authority of individual states and has been governed by state tort statutes.[88] While medical malpractice claims have existed since the 1800s, they began to surge in the 1960s, likely because of new treatments that bore higher risks for patients, fewer barriers to lawsuits, and the removal of rules that previously shielded charitable institutions from suit.[89] This, in turn, prompted lobbying by healthcare groups to reform the medical malpractice system as a whole.[90] As a result, the landscape of medical malpractice torts varies considerably state by state. According to some analyses, the states that spend the most on medical malpractice cases are New York, California, Pennsylvania, Florida, and New Jersey.[91]

B. Medical Malpractice Claims in Pre-Roe v. Wade Abortions

While Dobbs poses novel issues for the intersection of medical malpractice and emergency abortion care, medical malpractice claims have long existed in the context of negligently performed abortions.[92] Pre-Roe, some women and their families brought cases against those who provided them with abortions, despite the fact that the women themselves could be prosecuted for having the abortions in certain states.[93] Most of these claims were against practicing physicians.

Women and their relatives expected not only competent care when they engaged an abortionist, but, if their abortion provider proved to be unskilled, they assumed they had recourse in the courts. Their victories in court show they were right. Juries granted awards ranging from $200 to $8,000. The average award in these abortion suits was $3,250, comparable to awards granted in other medical malpractice cases.[94]

The scope of monetary awards for abortion cases varied, but plaintiffs often sought recovery of funeral expenses in fatal cases and reimbursement of emergency medical care costs.[95] Courts split into two camps on such cases. Some concluded that women who had received “illegal” abortions were victims and could therefore seek damages from the doctors who had performed the procedures, while other courts treated those women as accomplices who had consented to a crime and therefore held that they were not entitled to bring such claims.[96]

American history and public health scholar Leslie Reagan offers the following commentary on these pre-Roe,abortion-related medical malpractice cases, which can also shed light on the social norms that underlie health-related tort claims today: “[T]he willingness of Americans to sue doctors for badly performed illegal abortions should be read as an indication of Americans’ high expectations of doctors.”[97] Arguably, due to advances in science and technology, public health standards have only improved since the late nineteenth and early twentieth centuries[98] when these cases were filed, and it would be logical for Americans’ high expectations to have increased, or at least to have stayed the same. Pregnant patients today who seek to carry their pregnancies to term suffer similar harms as did pre-Roe plaintiffs. The difference between the plight of pre-Roe plaintiffs and that of modern patients is that today’s harms stem from delayed or denied lifesaving abortions, rather than exclusively those abortions performed upon request to terminate an unwanted pregnancy. As a result, it’s reasonable to infer that healthcare providers today are even more likely to face liability for harms related to abortion-related care than they were in the past.

C. Today: The “Abortion Double Bind”

Today, the practice of “defensive medicine” is a well-established phenomenon among physicians in which healthcare providers act primarily based on a fear of litigation rather than to treat or diagnose a patient.[99] Defensive medicine emerged as a safeguard against potential malpractice suits but has faced criticism as a practice that merely drives up healthcare costs without improving the quality of patient care.[100] One common defensive medicine practice is over-testing: doctors ordering excessive tests and diagnostics for illnesses or conditions that they suspect are unlikely in an effort to protect themselves in a hypothetical future malpractice case through the defense that they did everything right in treating a patient.[101] Defensive medicine can extend to surgeries as well: In the OB-GYN space, high rates of caesarean sections are often considered a signal of a defensive practice.[102]

The situation faced by healthcare professionals providing emergency abortions in banned states adds a twist to the traditional perception of physicians practicing defensive medicine. These physicians find themselves in what health law scholar Dov Fox calls the “abortion double bind,” in which a doctor is caught between potential felony charges if they perform the emergency abortion and potential medical malpractice liability if they do not.[103]Doctors in banned states who are at the front lines of emergency medical situations involving pregnancy thus have an incredibly difficult set of circumstances to consider. In Mississippi, performing an illegal abortion means a criminal penalty of one to ten years in state prison, along with license revocation for nurses and doctors.[104] In Texas, individuals who perform abortions face up to life in prison as well as a $100,000 fine.[105] Doctors, understandably, are terrified: Their own livelihoods and freedom hang in the balance in addition to the lives of their patients.[106] In addition to the heavy responsibility of providing patient care, physicians are now also forced to think about whether doing their jobs will imperil their ability to continue to do their jobs and care for their families.[107] As a result, many physicians have begun to simply stop providing all care that could potentially result in the termination of a pregnancy—often despite assurances from politicians and prosecutors that state authorities will not go after doctors.[108]

The choice at hand for doctors appears to be either (A) uproot their lives and leave the states where they currently practice so that they can work in states where abortion is legal, (B) provide emergency abortion services and risk the ends of their careers as well as potential legal nightmares with no guaranteed end in sight, or (C) wait to provide their patients with care until those patients are truly circling the drain. To the great detriment of pregnant Americans, the barrage of patient stories that this Note discusses suggests that too many physicians are choosing option (C), even in states where they receive assurances that they will not be prosecuted.

While some state government leaders have taken steps to indicate that they will not enforce abortion bans through prosecutions, the climate of fear remains. In 2024, after Arizona courts upheld an 1864 law that bans nearly all abortions, Arizona Attorney General Kris Mayes publicly stated that she would not prosecute any doctors for performing abortions.[109] Despite this, many Arizona physicians simply do not want to take any chances and are opting to not perform the procedure.[110] The stress and risks are also prompting doctors to take drastic measures to ensure their own peace of mind: A 2024 study of OB-GYNs in thirteen states with abortion bans indicated that 60 percent of physicians are thinking about leaving the states in which they currently work and 11 percent have already left and moved their practices to states with protections for abortion.[111]

This climate of fear extends to nurses and other hospital staff. A 2022 survey from Texas that analyzed the impact of Senate Bill 8 (SB8)—the first civil bounty-hunter-style abortion ban,[112] which Texas passed in September 2021—indicated that many physicians with training in dilation and evacuation (D&E)[113] were unable to offer the procedure to patients even for abortions that were permitted under SB8, because nurses and anesthesiologists were concerned “about being seen as ‘aiding and abetting’” abortions and therefore refused to participate.[114] Therefore, even if a physician was willing to perform a dilation and curettage (D&C)[115] or a D&E, the supporting staff required for the procedure may not have been. As a result, some doctors relied on alternate methods to get care for their patients, such as labor induction or even hysterotomy, an incision made into the uterus, “because it might not be construed as an abortion.”[116] However, these procedures carry different risks and are not standard clinical protocol for abortions: Hysterotomy carries increased risk of complications (compared with a D&E) and risks for future pregnancies, just as induction does.[117] The bottom line here is that patients suffer and the standard of care rolls backwards: One OB-GYN described these practices as going “back to doing what they used to do before there was a D&E provider in town.”[118]

While both scholars and members of the medical community have called upon physicians to engage in “medical disobedience”[119] by continuing to provide abortion care, this remains a tall order. The post-Dobbs physicians of today are being compared to some of the pre-Roe doctors who stood up to laws criminalizing abortion, facing arrest and public harassment for openly violating abortion laws.[120] Legal defense funds have opened up to help physicians nationwide who face prosecution.[121] But the chilling effect of abortion bans is expansive, and while some brave doctors and nurses are out there openly flouting them,[122] many healthcare workers remain understandably fearful. One OB-GYN based in Indiana told NPR:

There is no way that I would risk my personal freedom and jail time for providing medical care . . . . I would love to show my children that I am brave in the world, but our society will not allow me to be a civil-disobedient citizen in the way that some of these articles suggest, because I would be imprisoned, I would be fined, I would lose my license and I very well could be assassinated for doing that work.[123]

The specter of criminal liability in the abortion double bind looms so large for doctors that the scales tip in favor of the self-protection of individual healthcare workers and the medical system, and not in the direction of the lifesaving healthcare that patients deserve and so desperately need.[124] As a result, patients pay the price.

While physicians continue to face horrific risks, including criminal liability, for providing basic abortion care, laws limiting emergency access to abortion remain deeply unpopular even with conservative Americans. A recent poll showed that 86 percent of adult Americans support protecting access to abortions for people suffering from pregnancy-related emergencies such as miscarriages.[125] As a result, while bans remain on the books, states feeling public backlash have taken steps to expand such so-called protections—all without paring down their overall criminal prohibitions. These steps, however, have been largely useless. Texas, for instance, instituted an affirmative defense in criminal cases for physicians and pharmacists who perform abortions in cases of ectopic pregnancy or PPROM.[126] However, creating affirmative defenses will likely do little to mitigate the overall chilling effect and culture of intense fear that state abortion bans have sown among healthcare professionals because they still place the onus on physicians to defend themselves after being charged.[127] The clear result of states attempting to “work around” the double bind that abortion bans create is that physicians nationwide continue to fear for their medical licenses, livelihoods, and families if they provide emergency abortions.[128]

D. Who Decides? What Post-Dobbs Patient Experiences Tell Us

What’s happening on the ground in hospital emergency rooms indicates chaos: Doctors, hospital administrators, and legal counsel have been left to scramble to make decisions on a case-by-case basis, frequently on compressed timelines, often leading to horrific outcomes for patients. Because the data is still emerging and because every state ban is different, the situation varies from emergency room to emergency room. The fact patterns emerging from different accounts give us clues about how healthcare systems are operating when it comes to emergency abortions and offer the best insight into how medical staff and administrators are making decisions around who gets care and who doesn’t.

Ultimately, the eerie similarities in so many stories of patients who were either denied care or made to suffer life-threatening delays draw a clear throughline that points to decision-making failures at the top of hospital administrative structures. Because information about how hospital administrations come to these decisions is not public, laying out the internal process leading to circumstances on the ground is difficult and beyond the scope of this Note. However, the anecdotes discussed in this Section suggest that, in cases where hospital staff tell patients that they cannot provide them care, it could be because (A) the hospital has provided no guidance to its employees about state abortion bans; (B) the hospital has instructed staff to intervene only if a patient is imminently close to death; or (C) a hospital has given employees guidance and a promise of protection from liability in an effort to widen access to care, but staff still remain fearful of prosecution and license loss and therefore choose to exercise restraint regardless.

There is no uniform approach to handling medical exception abortion cases that emerges across anecdotal evidence—let alone a standard procedure that is founded upon the goal of saving pregnant people’s lives.

1. Emergency Room Staff

Jaci Statton, a stay-at-home mother of three, was diagnosed with a molar pregnancy[129] with cancerous tissue that required a D&C after coming close to passing out in her kitchen and realizing that her pants were soaked with blood.[130] She was transferred from hospital to hospital in Oklahoma in search of the care she needed; no one would offer her the procedure despite the risks to her life—which all the clinicians she saw recognized.[131] The staff at one hospital told her they could not perform the procedure because it was a Catholic hospital; at another, the University of Oklahoma Medical Center, an ultrasound tech objected to a D&C because he detected fetal cardiac activity.[132] At a third hospital, staff told her she could wait in the parking lot until her condition worsened enough to be treated with an abortion because, in their words, “[w]e can’t touch you unless you’re like crashing in front of us.”[133] They assured her that at that point, staff would be “ready to help [her].”[134] It is unclear whether this policy was the result of individual physicians’ readings of the state’s abortion ban and medical exemptions or the result of a more official hospital policy that staff were enforcing. Statton eventually traveled out of state to get the abortion she needed, and she ultimately chose to get a tubal ligation to prevent future pregnancies after her harrowing experience.[135] After the ordeal, she began taking antidepressants for the first time.[136]

When one of Zurawski’s Texas coplaintiffs, Anna Zargarian, was diagnosed with PPROM, emergency room doctors informed her that they could not offer the D&E they believed to be the safest treatment because doing so would violate Texas abortion bans since fetal cardiac activity was still detectable.[137] Induction was out of the question, and doctors merely typed a generic abortion-finder resource into Zargarian’s phone and offered to admit her for “expectant management,” which essentially meant that she would either wait to go into labor naturally or deteriorate enough so that the hospital could then treat her.[138] Zargarian went home and eventually made the decision to travel to Colorado—despite running the risk of going into septic shock or labor during her trip.[139]

Just as Zargarian was forced to travel to Colorado to get care, so too must patients in other states. In a three month period, six pregnant patients in Idaho—a state known for litigation relating to its abortion ban[140]—were airlifted to out-of-state hospitals in order to receive the stabilizing abortion care they needed.[141] This figure, if annualized, could amount to twenty patients per year needing to be airlifted for out-of-state care.[142] One Idaho physician explained: “When the guessing game gets too uncomfortable, we transfer the patients out at a very high cost to another state where the doctors are allowed to practice medicine.”[143] Indeed, airlifting a single patient hundreds of miles away to Oregon or Washington can cost tens of thousands of dollars.[144] In 2024, some Idaho physicians started advising their pregnant patients—or those trying to become pregnant—to buy memberships with critical care transport companies to avoid facing massive costs in case they end up requiring emergency transport to another state for an abortion.[145] Private insurance is a requirement for membership.[146] However, those who do not have the resources to pay for this service are forced to return home and wait until they get sicker.[147]

2. Hospital Lawyers

The case of Mylissa Farmer shows the extent to which hospital legal departments exert control over the care that pregnant patients so desperately need in emergencies. Like so many others, Farmer experienced PPROM a mere eighteen weeks into her pregnancy.[148] She sought abortion care in two states: Kansas and Missouri. Hospital lawyers at two separate institutions determined that they would not treat her, leaving her, like Statton and Zargarian, to travel elsewhere in order to get care.[149] At Freeman Hospital West’s emergency room in Missouri, Farmer was informed that the hospital’s “legal department refused to allow its doctors to intervene.”[150] The legal department cited the state’s abortion ban as the basis for its decision, despite doctors knowing that this decision threatened Farmer’s life. Freeman physicians informed Farmer that she could either remain in the hospital on IV antibiotics and wait for her body to start laboring on its own or leave.[151] Freeman doctors also later informed Farmer that she was not the first woman in similar circumstances they had turned away and expressed fear that “women like her ‘would die’ as a result.”[152]

One of the physicians treating Farmer advised her to go to an emergency room outside the state, prompting Farmer to drive to Kansas, where she was denied care by a second hospital’s lawyers. At the University of Kansas Hospital, a physician examined Farmer and recommended a surgical procedure that would “resemble an abortion.”[153] Farmer elected for labor induction rather than the surgery, in part because it would give her a chance to hold and say goodbye to her daughter.[154] For a moment, it seemed like Farmer would finally get the care she needed. Twenty minutes later, the same doctor returned and informed Farmer that the hospital legal counsel had decided that “despite [the doctor’s] assessment that Ms. Farmer needed prompt care, [the doctor] could not provide Ms. Farmer with any treatment, including inducing labor, because it would be ‘too risky in this heated political environment to intervene.’”[155] Farmer was once again forced to leave.[156] She eventually received the care she needed at a clinic in Illinois, a state where abortion is not banned.[157]

Some hospitals have begun to take more overt steps to insulate themselves from liability. Attorneys at one Missouri hospital emailed physicians notices stating, “You cannot offer abortion. You cannot refer for abortion out of our hospital, because we’re not going to take on that liability and that responsibility.”[158] The hospital directed its doctors to email its legal team if there were concerns that a pregnancy could not continue.[159] One OB-GYN specializing in high-risk pregnancies, Dr. Betsy Wickstrom, was given a 24/7 legal hotline to call in “dire” situations and seek advice on how to proceed.[160] Yet, despite these resources, Dr. Wickstrom’s hands were often tied. Her hospital’s protocols meant that there was simply more red tape she had to navigate during the most time-sensitive moments of high-risk pregnancies, where, according to Dr. Wickstrom, “time is life.”[161] When entering ectopic pregnancy diagnoses into patients’ medical records, “a large red banner pop[ped] up” asking Dr. Wickstrom to confirm the accuracy of the diagnosis and directing her to consult with an attorney if the fetus in such cases had a heartbeat.[162] As a result, Dr. Wickstrom has sometimes needed to refer patients to providers over state lines, in Kansas.[163]

While some healthcare organizations have made clear that their employees will have the organization’s backing when it comes to defending any staff member, this is not necessarily the case at every institution.[164] In some cases, hospitals have left physicians largely in the dark, neglecting to provide any guidance to doctors about how to act when assessing emergency situations involving abortion.[165] One Idaho OB-GYN described how their hospital’s legal counsel refused to meet with them for over two months, and, when they finally met, the lawyer merely regurgitated the law back to them.[166]

3. Physician Specialist Committees

At other hospitals, informal, physician-driven protocols are beginning to emerge, but, while important, they remain a Band-Aid approach to patching a gaping wound. At Vanderbilt University Medical Center in Nashville, an ethics committee must now approve emergency abortions.[167] When questions around providing patients with lifesaving abortions come up, the committee communicates by email, phone, and text message. A group of six OB-GYNs, five of whom are women, formed the committee in fall 2022 to address the crisis they saw unfolding. Their goal was to back each other up in order to serve as many patients as possible while remaining within the confines of Tennessee law.[168] Often, discussions happen by phone, and sometimes the committee pulls in specialists from other departments to discuss specific cases.[169] Abortion requests “can hit the committee’s inbox at any hour,” and while there are at least two requests per month, the committee can get as many as four per week.[170] Urgently life-threatening complications such as cardiac failure and Stage 3 kidney disease are usually signed off quickly via text message, but other cases—such as stable patients with extremely high-risk delivery parameters due to medical history, who face eventual organ loss and potential death in the delivery process,[171] or cases of fetal anomalies, which put pregnant individuals at risk for uterine rupture and potential death[172]—require lengthy deliberation.[173] The answer in those cases is often “no”: Even physicians on the committee have stated they are not “brave enough” to OK a potentially lifesaving procedure, and they frequently urge restraint due to fear that they might be considered “cavalier” and appear like they’re trying to circumvent state law.[174] Moreover, the committee itself—not Vanderbilt as an institution—has developed critical protocols and blanket policies that allow doctors to provide abortion care in cases of PPROM due to the high risk of sepsis.[175] However, the committee only discusses patients whose doctors sound an alarm and reach out to the committee for guidance; many patients whose physicians don’t reach out are silently denied care.[176]

4. The Takeaway: Zero Transparency

While evidence is beginning to support what these individual accounts tell us, on-the-ground accounts remain the primary source for understanding the processes hospitals are utilizing to make decisions about lifesaving abortions.[177] A recent study, in which individuals contacted Oklahoma hospitals while attempting to obtain information about hospital policies around providing abortions in case of pregnancy complications,[178] yielded findings that indicate the complete lack of a cohesive approach across Oklahoma hospitals:[179]

[N]ot a single hospital appeared to be able to articulate clear, consistent policies for emergency obstetric care that supported their clinicians’ ability to make decisions based solely on their clinical judgment and pregnant patients’ stated preferences and needs. At most hospitals, representatives were unable to tell the callers whether there was an approval process or any other guidelines to help clinicians determine that a pregnancy must be terminated to save the life of the patient, and they were similarly unable to describe what miscarriage management services were available to patients. In a few outlier cases, representatives explained that their hospitals had instituted such policies but refused to provide this information, in some cases citing an inability to share material with those outside of the hospital system, and in others offering no explanation.[180]

The study concluded that the following elements all remained deeply unclear: (1) what hospital policies or guidelines were for clinical decision-making in medical emergencies concerning pregnant people; (2) what criteria clinicians used for determining who could receive an emergency abortion; (3) what the administrative oversight mechanisms for approval were; and (4) how miscarriages were to be handled, particularly in cases of fetal cardiac activity.[181] Given the absence of protocols, the potential for staff to turn patients away or force them to wait dangerously long periods of time—both of which constitute breaches of physicians’ ethical responsibilities to their patients—is high. The absence of protocols, however, provides legal cover for hospitals: Protocols that go too far in one direction could risk breaking a strict abortion ban, while protocols that go too far in the other direction could open the door to negligence liability for the institution itself, as this Note will discuss in more detail in Part II.

II. Paths Towards Institutional Liability

While several paths to liability exist—including negligence claims against individual healthcare providers, administrative complaints, and wrongful death claims—institutional tort liability, through negligence claims filed against hospital systems, presents the most promising path forward to pressuring healthcare systems to provide lifesaving emergency abortion care.

A. A Note on EMTALA

One federal law has significant overlap with questions around medical malpractice liability and failure to provide lifesaving emergency abortions: the Emergency Medical Treatment and Labor Act (EMTALA). EMTALA, a Reagan-era federal law, was originally passed in order to prevent “patient dumping,” a practice in which hospitals either refuse to treat unwanted patients—who are generally uninsured, mentally ill, and indigent—or send them away by inappropriately transferring them to other hospitals.[182] EMTALA provides recourse to victims of patient dumping by creating penalties for hospitals and physicians found to have violated the law by failing to stabilize patients presenting with emergency medical conditions.[183] At the time of this Note’s writing, the Supreme Court has yet to directly address whether EMTALA preempts state statutes that do not adequately protect the health of pregnant people, having conspicuously dodged the question in Moyle v. United States.[184]

Much as with medical malpractice claims, patients themselves can bring claims against hospitals and doctors not in compliance with the law. While EMTALA’s narrow scope makes it an imperfect tool for broader abortion-related litigation,[185] at least two post-Dobbs plaintiffs have brought EMTALA claims against hospitals for alleged violations concerning denials of lifesaving abortion care.[186] One such plaintiff, Mylissa Farmer (who was repeatedly denied an abortion at multiple emergency rooms after being diagnosed with PPROM, as previously discussed in this Note) was successful in her EMTALA claims against two hospital systems in Kansas and Missouri.[187]

Unfortunately, following Donald Trump’s reelection in 2024 and the appointment of Robert F. Kennedy Jr. as secretary of the Department of Health and Human Services (HHS)[188]—the federal administrative body charged with oversight and enforcement of EMTALA[189]—it is unlikely that HHS will be willing to enforce EMTALA in the proactive ways that the Biden-era HHS administration did.[190] The Trump Department of Justice’s decision to dismiss its challenge to Idaho’s ban on emergency abortion care in Moyle (initiated during the Biden administration) reflects quite plainly the likelihood that HHS will be unwilling to enforce EMTALA.[191] At his confirmation hearing, Secretary Kennedy demonstrated a glaring lack of understanding of EMTALA and of HHS’s authority to enforce the law.[192] As a result, it’s unlikely that future plaintiffs will have the same access to recourse as Farmer, or that plaintiffs’ lawyers will rely on EMTALA as a tool for their clients. New legal tools are therefore more important than ever.

B. Most-Applicable Types of Tort Claims

1. Medical Malpractice

For a plaintiff to successfully bring a medical malpractice claim, they must show that they received substandard medical care by proving four elements: (1) a duty that was owed to the patient by the healthcare professional (or institution), (2) breach of that duty, (3) causation, and (4) damages suffered.[193] Injured plaintiffs may bring medical malpractice claims against the individual providers who treated them or against the medical institution where they sought care. The latter may be achieved through vicarious and corporate negligence liability, which will be discussed in more detail in Part II.C. The key consideration in a medical malpractice case is whether the provider violated the standard of care owed to the patient. This issue will be discussed in detail in Part III.B. State court obstacles to medical malpractice claims will be discussed in Part III.A.

While cases involving medical malpractice claims and improperly provided abortion care prior to Dobbs exist, the complaint filed by Rachel Harrison and Marcell Johnson in September 2025 against Dignity Health in California is the first known medical malpractice claim filed by a patient in the context of denied or delayed emergency abortion care after Dobbs.[194]

2. IIED & NIED

Intentional infliction of emotional distress (IIED) and negligent infliction of emotional distress (NIED) are two types of tort claims that seek to hold a defendant liable for conduct causing severe emotional distress to another.[195] IIED requires that a defendant’s conduct be outrageous, that the defendant act recklessly or purposefully, and that the conduct cause severe emotional distress.[196] The standard for NIED differs, requiring only negligent action causing severe emotional distress.[197] Most states allow NIED claims when it was reasonably foreseeable that a defendant’s actions would cause emotional distress.[198]

IIED and NIED claims are an important route to liability for litigators to consider in the context of denied or delayed emergency abortion care. While analysis for these claims is fact-specific, many of the patient stories referenced thus far in this Note already present situations ripe for IIED and NIED claims.[199]

Similarly to medical malpractice claims, IIED and NIED claims can be brought against individual providers who treated a patient or against healthcare institutions where a patient sought treatment.

All three California lawsuits against hospitals feature IIED and NIED claims.[200] The lawsuit filed by Rachel Harrison and Marcell Johnson features an especially horrifying scenario. Rachel Harrison was denied lifesaving abortion care by Dignity Health’s hospital facilities not once but twice, during treatment relating to not one but two different pregnancies.[201] The first time, Harrison waited in the emergency department waiting room for four hours while bleeding, was not given a room or seen by a doctor, and was told by an ultrasound technician that her fetus was the size of an avocado before being discharged to complete a high-risk miscarriage at home without medical supervision.[202]

IIED and NIED claims offer injured patients a viable route towards recourse for the abominable conduct they suffer in hospitals while seeking care. This is particularly important because, while many patients might not suffer long-term physical harms such as loss of fertility, the emotional trauma they endure in these moments cannot be understated and deserves recognition.

3. Wrongful Death

In the most severe cases, the tort of wrongful death could be an option for the families of a pregnant patient who died as a result of denied or delayed care. Just as with malpractice, IIED, and NIED claims, wrongful death claims can be brought against individual providers who treated a patient or against healthcare institutions where a patient sought treatment. Wrongful death requires a finding that the defendant was negligent in causing the individual’s death.[203]

Yennifer Alvarez, an uninsured Texas resident whose family came to the United States from Mexico when she was a child, became pregnant just as Texas’s first abortion ban took effect in 2021.[204] At various points in her pregnancy, she experienced difficulty breathing, unexpected bleeding, and dangerously high blood pressure.[205] She was hospitalized for pulmonary edema but later discharged, and ultimately died after returning to the hospital unable to breathe.[206] The autopsy report read as follows:

Cause of death

Hypertensive cardiovascular disease associated with morbid obesity

Other contributing factors

Pregnancy[207]

Physicians who spoke with The New Yorker stated that, while Alvarez’s high blood pressure and other factors put her at risk of pregnancy-related complications, including the pulmonary edema she developed, an abortion early into her pregnancy would likely have saved her life.[208] The physicians agreed that the outcome Alvarez suffered was “a very preventable maternal death.”[209] And yet pregnancy was noted only as a “contributing factor.”[210]

Alvarez’s story illustrates the need to offer abortions as part of comprehensive maternal-fetal care. While her case differs from emergency abortion situations such as Zurawski’s, which involved PPROM, it underlines just how quickly a pregnancy can become deadly. Moreover, the vast disparity between the levels of news attention Alvarez and Zurawski have received reflects the extent to which many abortion ban-related deaths are likely not making headlines because of how the deaths are classified and the racial and socioeconomic context of a given individual.

Families suing for wrongful death would likely target their claims at the healthcare workers who caused the injury that led to a patient’s death by “wrongful act, neglect, carelessness, unskillfulness, or default.”[211] However, wrongful death statutes vary widely by state, meaning that a plaintiff’s potential recovery would depend on where they file their claims—which itself would depend on where a person died and where they are domiciled. Further research is needed on a state-by-state basis to understand whether the standards state courts apply to the terms “wrongful act, neglect, carelessness, unskillfulness, or default” would support viable negligence claims.[212] Furthermore, damage caps, standing to file a claim and recover damages, statutes of limitations, applicable law, and other questions all depend on each state’s individual laws.[213] In many states, for instance, statutes of limitations hover around two to three years.[214] Finally, depending on the strategies outlined in subsequent sections, the hospital itself may also be named as a defendant under a theory of corporate negligence or respondeat superior.

Wrongful death claims have previously been used in the context of childbirth, so it should be relatively straightforward to extend them to the context of pregnancy and emergency abortions. In 2016, Kira Dixon Johnson, a Black woman in California, died from internal bleeding following a scheduled cesarean section to deliver her son.[215] Johnson languished for hours without appropriate care despite repeated signs of internal bleeding and readmission to the operating room.[216] In 2022, Johnson’s widower filed a wrongful death suit against Cedars Sinai Medical Center in Los Angeles, citing systemic racism as the primary factor in its medical staff’s treatment of patients of color and its negligent treatment of his late wife.[217] While a recent California bill lifted the cap on medical malpractice awards, the timing of Johnson’s claim means he will not benefit from the change, and his noneconomic damage awards remain capped at $250,000.[218] The case also brought national attention to the issue at Cedars Sinai in particular: A year later, the federal government launched a civil rights investigation into the hospital over its treatment of patients of color—particularly Black pregnant patients.[219] Johnson’s claim has since been resolved privately, likely with an undisclosed settlement.[220]

Johnson’s lawsuit exemplifies how to target hospital systems directly by deploying financial pressure, bad publicity, and federal government scrutiny (though such scrutiny is unlikely under the Trump administration). However, because hospitals generally seem to prefer potential malpractice liability to implementing policies that prevent patient harms, it is likely that wrongful death cases would need to be both egregious and numerous to create enough financial pressure to change systemic behavior. Still, cases hold significant weight in the court of public opinion and may offer the bereaved families of pregnant patients some financial compensation through settlements with hospitals. Ultimately, targeting hospitals themselves (rather than nurses and physicians) is likely to yield the greatest impact.

C. Theories of Institutional Tort Liability: Hospitals & Healthcare Systems

Targeting institutions, rather than individual physicians and healthcare workers, offers plaintiffs a chance to sue the corporate actors who are behind the very policies that frightened healthcare workers are required to enact. Targeting hospitals rather than individual physicians would also alleviate issues stemming from the abortion double bind: Instead of imposing liability upon individuals who face the specter of criminal liability, lawsuits would seek to hold responsible the hospital systems who enact—or fail to enact—policy decisions and impose them onto their staff from the top down. Moreover, targeting large corporate actors in the healthcare space with corporate negligence claims could incentivize them to reverse harmful policies, thereby empowering doctors and staff to treat patients according to the standard of care.

1. Managed Care Liability

Managed care liability—a form of liability directed at health insurers—could offer a vehicle for plaintiffs to bring claims against insurance companies in cases where health insurance plans deny coverage for lifesaving abortion care. While this scenario is less common than a denial of care by hospital staff, it is already happening. In 2024, a woman insured under the Federal Health Benefits Program was denied coverage for her D&E when she was diagnosed with PPROM.[221] While an insurance denial may not prevent a patient from receiving care altogether, it could mean a significant delay, which might in turn cause significant injury or death.

In the 1990s, managed care organizations (MCOs) began to spread in the United States, mostly replacing traditional indemnity insurance plans.[222] MCOs are prepaid health plans, such as health maintenance organizations (HMOs) and preferred provider organizations (PPOs), which are essentially networks of doctors and plans that work with certain insurance companies to offer patients care at lower costs.[223] Managed care liability essentially means that an insurance company can be liable for the decisions it makes for patients who are enrolled in its health plans. Managed care liability insurance is a form of liability coverage that is written to cover organizations that deliver medical services on a managed care basis, including the HMOs and PPOs, which are now among some of the most common American health plans.[224]

Managed care liability means that, rather than suing individual physicians, plaintiffs can sue the managed care plan because the plan, not the physician, made a decision regarding a patient’s care.[225] This offers a potentially fruitful route for injured patients, particularly because some data indicates that jurors disfavor corporate defendants compared to individual defendants[226] and because of the enormous wealth that large MCOs possess.[227] Additionally, states with certain tort-related damage caps sometimes do not have limitations for managed care cases, meaning that plaintiffs may be able to obtain higher damage awards.[228] This could all mean increased chances of higher recovery for would-be plaintiffs.

2. Vicarious Liability

Courts can hold hospitals responsible for the negligence of their employees under a theory of respondeat superior, or vicarious liability.[229]

However, many hospitals’ employment schemes may pose obstacles to vicarious liability. Many hospitals employ physicians as independent contractors rather than employees, which reduces institutional liability for a physician’s actions, and some hospitals reinforce this position by including language such as “[p]hysicians are not employees or agents of the hospital” in their conditions of service.[230] However, some courts have still held that hospitals may be liable for the negligent acts of their physicians even when an independent contractor relationship exists.[231]

The issues arising from staff who are independent contractors are particularly relevant in the emergency room context, where many pregnant patients seek emergency care.[232] Three types of physicians work in hospital emergency rooms: staff (employee) physicians, private physicians, and contract physicians.[233] Many hospitals use contracts with third-party vendors who then staff the hospital’s emergency room with physicians.[234] Physicians often choose this employment structure because as contract physicians they have guaranteed incomes, flexible schedules, and can avoid being on call.[235] However, the scope of liability for physicians employed through a third-party contractor is often unclear.[236] In some cases, though, independent contractors may still be held liable under a theory of ostensible agency in situations where a patient could reasonably believe that the physician was an employee of the hospital and the hospital had done nothing to dispel that belief.[237]

Therefore, analysis of a hospital’s liability under a theory of vicarious liability or ostensible agency will depend on the employment details of healthcare workers in a given emergency room and the features of the employment contracts which govern their work.[238] A doctor or nurse’s specific employment scheme may have been disclosed in consent forms that a would-be plaintiff signed upon entering the hospital or may only be revealed through discovery once litigation is already underway.

3. Corporate Negligence Liability

The theory of corporate negligence offers the most promising path to holding hospitals liable for their own negligent institutional conduct, rather than vicariously liable for the actions of their employees.[239]

Under corporate negligence liability, a corporate entity may be directly liable to a plaintiff for violating its own independent duty of care, even when the individual healthcare provider was not negligent.[240] This doctrine emerged as a result of the changing role of physicians and hospitals in American healthcare over the twentieth and twenty-first centuries, originating in a 1965 Illinois case, Darling v. Charleston Community Hospital.[241] In Darling,the Illinois Supreme Court recognized that, because patients now look to hospitals for treatment rather than individual physicians, hospitals themselves owe a duty to their patients.[242] Darling was the first case to hold that a hospital has an independent duty to supervise the doctors who work within it.[243]

In many states, the gradual abolition of the doctrine of charitable immunity—which had previously shielded hospitals from liability—made the holding in Darling possible.[244] Darling’s new theory of liability emerged as a result of a shifting healthcare landscape in which hospitals today “do far more than furnish facilities for treatment,” as they once did.[245] Before the twentieth century, American doctors mostly provided healthcare through house calls.[246] But as the need for hospitals and surgical facilities grew, hospitals began to extend admitting privileges to doctors so that they could use the specialized facilities.[247] While, previously, patients were often treated by a single physician, today that framework is neither possible nor desirable: Modern medicine requires treatment by multiple doctors and healthcare professionals.[248]

As a result, courts across the country have adopted different approaches to corporate negligence, with some choosing more expansive visions of liability and exposure than others. This doctrine could be useful to would-be abortion-denial plaintiffs in many states, but not all: Corporate negligence doctrine varies by state, and not all states have adopted it. As of 1983, courts in fifteen states had already recognized or implemented some form of corporate negligence.[249]Maine, however, is an example of one state that has explicitly declined to adopt corporate negligence doctrine, meaning that the applicability of this doctrine will be limited.[250] A full overview of the states that have and have not adopted corporate negligence is beyond the scope of this Note.

Some states continue to expand corporate negligence doctrine today, thereby increasing its availability. Washington adopted corporate negligence liability in 1984 and has continued to expand the scope of hospital liability for negligence by holding that hospitals have a “duty of care owed . . . directly to patients” regardless of employee negligence.[251] As recently as 2024, the State recognized corporate negligence in the context of emergency medicine: In Estate of Essex v. Grant County Public Hospital District No. 1, the Washington Supreme Court held that hospital licensing statutes and regulations create a nondelegable duty to emergency department patients.[252] The Court declined to “cabin” corporate negligence to the limited set of historically recognized circumstances.[253]

How might corporate negligence doctrine apply in cases of denied or delayed emergency abortion care? For a patient to hold a hospital itself liable for violating its duty of care, the plaintiff would need to argue that the harms they suffered constituted a violation of one of four central duties that the hospital owes to patients: (1) the duty to use reasonable care in the maintenance of safe and adequate facilities and equipment, (2) the duty to select and retain only competent physicians, (3) the duty to oversee all those practicing medicine within the hospital, and (4) the duty to “formulate, adopt, and enforce adequate rules and policies to ensure quality care for the patients.”[254]

The fourth area—failure to formulate, adopt, or enforce adequate rules and policies—is likely to be the most promising in the context of emergency abortion access because it goes directly to a central issue: hospitals’ failures to enact any guidance whatsoever for their physicians.[255] In 2024, Senator Ron Wyden requested that eight American hospitals that had been the subjects of reports of delayed or denied emergency pregnancy care provide documentation regarding their “policies, processes, and procedures related to state abortion laws and emergency reproductive health care.”[256] The hospitals’ responses revealed that many of them continued to rely on guidance created before the very existence of post-Dobbs abortion bans.[257] In other words, these institutions did nothing to create policies or protocols that would be appropriate in light of a changed legal landscape. As a result, a plaintiff could argue that a hospital breached its duty to ensure the safety and care of its patients by failing to formulate policies and processes governing how staff should handle cases that require emergency abortion in a banned state.

The duty to formulate and follow policies was used successfully in Barkes v. River Park Hospital, where the wife of a deceased patient brought a medical malpractice action against a hospital for the death of her husband.[258] Barkes died from a cardiac infection following a visit to the emergency room for arm pain.[259] After initial intake and triage by a paramedic, a nurse practitioner diagnosed him with an overuse arm sprain but did not observe any symptoms suggestive of cardiac issues, so Barkes was discharged without cardiac testing.[260] Two hours later, he was dead.[261] Barkes’ wife sued the hospital, alleging that her husband would still be alive if he had been triaged by a registered nurse rather than a paramedic and then examined by a doctor rather than a nurse practitioner.[262] The jury found the hospital entirely at fault for failing to enforce its written policies and procedures in the course of Barkes’ treatment.[263] The court held that the hospital had breached its duty of care to Barkes by failing to enforce its policy that all patients be seen in the emergency room by an appropriate physician.[264] The court noted that hospital administration is responsible for implementing a system of oversight to enforce its policies and has a duty to “create and maintain effective lines of communication to health care providers practicing within its walls” to ensure their awareness of hospital policies and procedures.[265] The court also observed that Tennessee courts “have long recognized that hospitals owe certain duties of care to patients that come to them for treatment and healing.”[266]

Barkes offers one example of a court recognizing a hospital’s direct duty not only to adopt policies that ensure quality care exists, but also to ensure their implementation. Litigators can use this example to argue that hospitals have an affirmative duty to formulate and enforce policies that offer staff the tools to keep pregnant patients as safe and healthy as possible—especially when a statewide atmosphere of fear and confusion endangers patients. Because the case law around a hospital’s duty to formulate and enforce policies—and within corporate negligence as a whole—is not well developed, litigators have an opportunity to make creative, forward-thinking arguments about hospitals’ duty to create policies that provide patients the standard of care, to communicate those policies with their staff, and to appropriately supervise them.

A key issue in this area of litigation will be whether the hospital knew that its lack of policy or procedures was causing harm to patients. In order for a hospital to be found negligent, the plaintiff must show that the hospital had “actual or constructive knowledge of the defect or procedures which created the harm.”[267] Lawyers for a plaintiff could argue that a hospital had constructive knowledge of harm based on its awareness of even a single instance of delayed or denied care in that hospital. Alternatively, lawyers could argue the hospital was aware simply because of the prevalence of reports and anecdotal evidence about pregnant patients going septic as a result of delayed abortion care.

However, one obstacle for plaintiffs filing corporate negligence claims is gaining access to the documents that would reveal hospital administrators’ actual or constructive knowledge or clarify who makes decisions about enforcing—or declining to enforce—hospital policies. The discussions that those at the helm of healthcare decision-making (most often hospital CEOs and boards of directors) have with their general counsels are likely protected by the cover of attorney-client privilege.[268] Access to the documents that could prove knowledge may therefore be limited. But the constructive aspect of the knowledge requirement offers room for litigators to argue that hospital administrators and directors indeed have knowledge of the defects in their policies (or the absence of policies altogether) that satisfies the knowledge requirement in less restrictive ways.

4. Leveraging Business Incentives

The absence of streamlined procedures for emergency reproductive care suggests that hospitals may be making a deliberate choice to risk the cost of potential malpractice liability over the risk of criminal charges, bad press, pressure from anti-abortion elected officials, and potential loss of employees’ medical licenses. The latter factors all spell bad business, a key consideration in today’s American healthcare landscape.[269] Because of the structuring of American healthcare as a medical-industrial complex, economic motives underlie nearly all decisions in American healthcare.[270] This is especially true as more private equity firms purchase healthcare organizations and turning a profit becomes intertwined with providing medical care.[271] Expanded corporate negligence liability would make prioritizing business over patients more difficult and costly.

Targeting hospitals through a theory of corporate negligence would in many ways be the ideal vehicle for malpractice claims in cases where hospital administrators implement a policy instructing their employees to put patients in harm’s way by explicitly not offering emergency abortions. For instance, a hospital’s blanket policy of turning away abortion patients may constitute corporate negligence and a breach of a duty that the hospital owes its patients. The challenges and downsides inherent in suing individual practitioners, as well as the fraught position of physicians in banned states who are merely trying to do their jobs without going to prison, also make pursuing institutional liability preferable.[272] System-wide change is more likely if the entities feeling the logistical and financial pressure of litigation are the hierarchically highest decision-making bodies themselves—particularly when the hospitals they manage are an important feature of the American economic landscape and are often valued in billions of dollars.[273]

However, a route to system-wide change through individual malpractice claims might also exist if injured plaintiffs bring a high enough volume of cases. If enough of a hospital’s physicians and staff became embroiled in medical malpractice claims that they, in turn, put pressure on a hospital system to change and threatened to find work elsewhere, that hospital’s governing body and leaders might be forced to enunciate clear policies regarding the treatment that staff are permitted to offer in common cases of PPROM. Hospital systems might not be able to change their states’ abortion bans (although the power that hospital systems wield in state politics should not be understated).[274] But hospitals could develop policies that inform employees that the hospital will protect them and fund resources like legal counsel in the event of a prosecution for performing an emergency abortion that is deemed unlawful. While this knowledge might not entirely remedy staff fears when it comes to providing emergency abortion care in banned states, any kind of guarantee of institutional support would be a starting point that presents far more support than currently exists.

Lastly, it is critical to assess whether courts in banned states have expansive or narrow views on corporate negligence liability, which would impact the viability of claims against hospitals with policies that impact would-be plaintiffs. However, because an expansive, state-by-state survey of this case law is beyond the scope of this Note, further research is needed in this area as litigators consider how to bring much-needed claims on behalf of injured plaintiffs.

III. State Law Challenges to Corporate Negligence Liability Claims

While corporate negligence liability, a theory of liability existing within tort law, remains the most promising route forward, several challenges exist on a state-by-state basis.

A. State Procedural Restrictions

Individual state restrictions on medical malpractice claims can significantly impede a would-be plaintiff’s case. These restrictions take two primary forms: screening processes and damage caps.

Several states have initial screening processes that plaintiffs must complete before they can file their claims, creating an additional hoop that injured plaintiffs must jump through. For example, Idaho requires every medical malpractice claim to go through a prescreening process it refers to as “prelitigation screening panels.”[275] Prior to filing a claim, plaintiffs must complete a prelitigation form, which allows them “to request a hearing for prelitigation consideration of a personal injury claim for money damages.”[276] The form requires plaintiff information, the names of all involved physicians and hospitals, and facts to support the claim of medical malpractice.[277] Hearings take place before a panel composed of one licensed Idaho physician, one layman panelist, one resident lawyer, and one person serving as an administrator of a licensed acute care general hospital (in cases of claims against hospitals).[278] A panel chairman and attorneys appointed by the Idaho State Bar oversee prelitigation hearings, which are described by local practitioners as “fast moving and informal.”[279] The hearing acts like a mini-trial, during which the plaintiff must prove that “it was more likely than not that the named defendants failed to meet the applicable standard of health care practice of the community in which the care was or should have been provided.”[280]

After hearing arguments from both sides and deliberating, the panel issues an advisory opinion on the claim’s merit.[281] Though the screening is required, the panel’s opinion is not binding, and plaintiffs are free to file their claims after the hearing.[282] This panel creates an additional barrier to plaintiffs pursuing their claims, which adds delays and requires additional resources.[283] It is also unclear whether the panel’s opinion influences the decision on any later claim it finds to be without merit. Utah has a nearly identical process to Idaho, which the state argues offers assistance to parties “in evaluating the strengths and weaknesses of their cases.”[284]

Medical malpractice damage caps vary widely by state, limiting the potential total sum a plaintiff can hope to collect in the aftermath of negligent care. While Connecticut, New York, Vermont, and Delaware—states where abortion is legal—have no caps, Idaho, Montana, and Texas—states that all restrict abortion—each have a cap of $250,000 for noneconomic damages.[285] The degree to which these caps vary makes an enormous difference in a plaintiff’s potential recovery, which is highly significant in matters concerning reproductive health and future fertility: Two hundred and fifty thousand dollars is little disincentive for a large corporate hospital system whose annual revenue totals in the billions of dollars. Take Dignity Health, the defendant in one of the California lawsuits: Its 2022–2023 revenue was $18.3 billion.[286] Its CEO earned nearly $30 million that year.[287]

For comparison, damage awards for future pain and suffering totaling in the millions of dollars are common for medical injuries which do not involve death in uncapped states. In 2014, a New York state court jury granted a man who eventually required the amputation of his leg after twelve surgeries a $9.1 million medical malpractice award, with noneconomic damages totaling $2 million for past pain and suffering and $4 million for future pain and suffering.[288] These are sums that, while still small compared to the overall revenue of America’s largest hospital systems, are more likely to draw the attention of the corporate leadership at a hospital system like Dignity Health. Damage caps, however, preclude them. Therefore, where a claim is filed may play a pivotal role in how much a plaintiff can hope to recover in damages—which also opens the door to questions about an Erie choice-of-law analysis.[289]

A potential route to dealing with limitations such as screening processes and damage caps could be to try and bring state medical malpractice claims in federal court through diversity claims. Further research is needed in this area, but a plaintiff may be able to bring a diversity claim against a hospital or physician in a case where the plaintiff resides in a different state and was, say, traveling through a banned state when they needed emergency abortion care. Alternatively, a plaintiff could target a healthcare system whose headquarters are in a different state than the one where a plaintiff or physician resides. Questions of whether state limitations such as damage caps and screening processes are procedural law would determine the viability of this route.

B. The Standard of Care in Banned States

Another key challenge to negligence claims for denied or delayed abortion involves the relevant standard of care post-Dobbs, which remains untested. Bringing a successful medical malpractice claim requires proving that a hospital or medical professional breached their duty of care to a patient, which centers around the question of what the applicable standard of care owed to that patient was.[290] In other words, what norm of care did the physician diverge from? Was the course of conduct the same as “what reasonably prudent similar healthcare providers are doing under similar circumstances”?[291] Whether the standard of care in banned states is different from the standard of care in states where abortion remains legal is a central question affecting the viability of tort claims for emergency abortion.

As medical malpractice law evolved in the late nineteenth and early twentieth centuries, courts began comparing physicians’ practices to those of similarly situated professionals in their geographical area, developing the “locality rule.”[292] The locality rule compares physicians to other medical professionals in a specific geographical area, in part to offer a fairer level of comparison to rural doctors, who operated with far fewer resources than doctors in bigger cities.[293]

However, the locality rule was established before the standardization of medical training and certification, which many argue “obviated the need” for such a rule.[294] Many states turned away from the rule after the establishment of national accreditation bodies and other organizations.[295] In 2015, only five states still followed a version of the locality rule: Arizona, Arkansas, Idaho, New York, and Pennsylvania.[296] Elsewhere, a national standard of care presupposes that physicians have the same training and are able to exercise the same “level of judgment and diligence” as peer practitioners in other states and parts of the country.[297] Therefore, it is likely that practitioners in states with abortion bans could not argue for a standard of care lower than the national standard, other than in the remaining states that still use the locality rule.

Under a locality rule analysis, physicians facing lawsuits could argue that doctors in banned states operate under a different set of circumstances than physicians in states where abortion is legal—that courts cannot apply the same abortion standard of care that they do elsewhere because of the prohibited status of the procedure. Furthermore, even physicians in states that do not recognize the locality rule could advocate for its revival, arguing that diverging criminal frameworks result in differences more relevant than geography.

Ultimately, without clarification of which standard of care takes precedence in situations with conflicting laws, determining the standard of care in banned states remains an open question. Therefore, the viability of medical malpractice litigation in state courts may hinge on resolving whether a state can have a “local” standard of care that is predicated upon criminal prohibitions—rather than a standard of care analogous to the one in a state where abortion remains legal.

Truly determining which standard of care should apply in states with abortion bans will require research into any potentially analogous situations of criminalization and/or prohibition of medical tools or procedures (if any exist). Further research must determine how courts have handled competing standards of care, and whether standards of care change in light of such external circumstances. Moreover, unearthing any potential correlations between banned states and states which have enacted limitations on medical malpractice claims, whether procedural or substantive, would help to further understand the state-by-state landscape for tort litigation that this Note discusses.

IV. The Viability of Torts Within the Larger Reproductive Justice Movement

This Part will explore several issues inherent to using torts as a litigation tool for plaintiffs in the post-Dobbs landscape, particularly the possibility that such claims would inflame tensions more than they help pregnant patients. This Part will argue that, though litigation tools may disrupt the current alignment between physicians and the reproductive rights[298] movement, using torts centers patients’ stories, harms, and choices in a way that more aligns with the principles of reproductive justice.[299]

A. Following the Anti-Abortion Playbook?

An initial and major concern with pursuing medical malpractice claims is that such action might merely create distractions for the reproductive healthcare access movement and follows the agenda of the anti-abortion movement. Legislators and other conservative politicians in banned states are transparent about their strategy of shifting blame for the health crisis facing pregnant people from themselves to doctors. In fact, they directly advocate medical malpractice claims as the legitimate forum for abortion litigation.[300]

In Zurawski, the State claimed during oral argument that medical malpractice litigation would define the scope of lifesaving exceptions in Texas’s abortion ban.[301] This was a clear example of conservatives attempting to shift blame away from abortion bans and towards doctors. Moreover, two prominent anti-abortion advocacy groups, the Charlotte Lozier Institute[302] and the Alliance for Hippocratic Medicine,[303] filed an amicus brief in Zurawski in which they argued the same point: The legal standard included in Texas’s abortion ban has long existed in Texas and has never been found vague.[304] The amicus brief was filed in an effort to support Texas’s ban and its emergency exemption, claiming that Texas physicians have long exercised “reasonable medical judgment” in treating pregnancy complications.[305] It further claims that Texas laws do not require doctors to abandon pregnant patients’ treatment in cases of emergencies, and that “refusing to treat such a patient is likely malpractice, given the established standard of care.”[306] In other words: Texas’s statute is not at fault, doctors are, and plaintiffs should take up any issues they encounter with their doctors rather than the state.

This strategy has been on full display in Zurawski and other cases regarding emergency abortion access. At a July 2023 hearing for Zurawski, the State repeatedly asked plaintiffs: “Did Attorney General Ken Paxton tell you you couldn’t get an abortion? Did anyone, working in any capacity for the state, tell you that you couldn’t get an abortion?”[307] The subtext of this argument is clear: Plaintiffs, blame your doctor and their poor judgment; they denied you the abortion you needed, but our hands as legislators and members of government are clean. This strategy is also deployed in other states. Tennessee Attorney General Jonathan Skrmetti stated that parties other than the state (including physicians) were behind pregnant persons’ harms, citing “doctors’ independent choices not to provide permissible abortions.”[308] Moreover, Republican politicians are trying to cast doubt on physicians more generally: Idaho Attorney General Raúl Labrador has publicly questioned the veracity of doctors’ accounts of abortion emergencies, including the need to airlift pregnant people out of state in Idaho to receive care.[309]

This Note’s goal is not to propose ways to make the lives of beleaguered physicians any more difficult than they already are, nor to exacerbate the already tense and fragile relationship between plaintiffs and their doctors in situations of life and death. Rather, this Note seeks to analyze the benefits and drawbacks of alternate litigation tools available to the increasing number of injured plaintiffs with very little recourse currently available to them. The fact that conservative, anti-abortion states and organizations are proposing medical malpractice claims should certainly serve as a caution and warning sign to anyone who seeks to advance reproductive health and access.[310] However, this Note posits that tort claims, which target large and powerful healthcare systems—and not individual doctors—are the most promising path forward. Corporate negligence liability would allow plaintiffs to apply pressure on organizations and corporations with actual political lobbying power,[311] which could, in turn, lead to legislative change—and, ultimately, access to care for pregnant patients.

B. Disrupting the Physician-Reproductive Rights Coalition

Historically, the modern American reproductive rights movement has involved a close partnership with doctors and the overall healthcare system in the United States. The case law contemporaneous with Roe v. Wade centered the right to privacy and the right of an individual and their healthcare provider to make decisions around abortion: The modern conception of abortion access has long framed the procedure as a private choice between a pregnant person and their physician, classically framing the procedure as a choice between a woman and her doctor.[312] Indeed, many of the plaintiffs in the foundational Supreme Court jurisprudence on abortion have been doctors.[313] They remain central to reproductive rights litigation today: The Zurawski complaint featured a claim on behalf of physicians and argued that under the Texas Constitution’s Section 19, “Rights of Physicians,” the state’s ban was depriving doctors of their right to practice their profession freely.[314] Physicians have therefore long been essential actors in the struggle for access to reproductive care. Doctors and other healthcare professionals who provide abortion care have often borne the brunt of the anti-abortion movement’s crusade to put an end to the procedure—sometimes paying with their lives.[315] As scholars C.E. Joffe, T.A. Weitz, and C.L. Stacey point out, the very text of Roe noted the centrality of physicians to the decision:

The decision vindicates the right of the physician to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention. Up to those points, the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician.[316]

Without a doubt, plaintiffs suing their doctors for negligence in cases involving denied or delayed emergency abortion care would make the doctor-patient relationship more adversarial. Merely discussing the prospect of medical malpractice claims threatens one of the core elements of the modern reproductive rights movement: the alliance between physicians and legal abortion advocacy groups and the doctor-patient relationship itself.[317] And yet, who is to say that this relationship is not already becoming adversarial and hostile, given the harrowing stories coming out of American emergency rooms? While this might not be the fault of physicians, the introduction of abortion bans has already created the double bind which produces a conflict of interest for physicians.[318]

Historically, physicians have also not always been allies to the movement for reproductive autonomy. Physician mobilization around abortion first began in the mid-19th century, when physicians were a leading group campaigning for the criminalization of abortion in an effort to differentiate licensed doctors from other healthcare and abortion providers such as nurses and midwives.[319] The American Medical Association (AMA), formed in 1847, made criminalization of abortion “one of its highest priorities, a move based not only on moral objections to abortion, but rather because the issue served so well as the centre of the new organisation’s professionalising project.”[320] By 1880, the AMA campaign was successful in its goal of criminalizing abortion to the extent that physicians could control the terms under which the only “authorized” abortions took place; in many states, that meant “when there was a threat to the life of the mother, or a serious threat to her health as determined by a physician.”[321] But of course there was no “uniform agreement on which conditions posted a true threat to the woman’s life or what degree of threat to her health merited an authorised abortion.”[322] This phrase describes the circumstances on the ground today in banned states.

The modern-day partnership between healthcare professionals and abortion advocacy groups developed in the twentieth century, after abortion was criminalized. But, even now, not all individual physicians or healthcare institutions support abortion access. The American Association of Pro-Life OBGYNs (AAPLOG)—a “special interest group” within the American College of Obstetricians and Gynecologists from 1973 until 2013 that now operates as an independent organization—offers a “Pro-Life Directory” of its members online.[323] AAPLOG encourages its members to work with what it refers to as Pregnancy Resource Centers (also known as “crisis pregnancy centers”) and other programs “helping women with ‘crisis pregnancies,’” which are primarily intended to discourage pregnant individuals from getting abortions.[324] Not all physicians are allies to the movement to widen and increase access to abortion.[325]

As a result, while medical malpractice claims do threaten the carefully maintained alliance between physicians and reproductive rights organizations, and there certainly may be pitfalls to this shakeup, there are also opportunities to consider. Tort claims that target healthcare providers and institutions could create a more patient-centered approach, rather than one that safeguards the interest of larger organizations, who may prioritize institutional litigation goals and movement partnerships. Individual attorneys who only represent one plaintiff who was denied care are likely to have different agendas and obligations when compared to a nonprofit that specializes in impact litigation and has many different clients, some of whom may be physicians. Interestingly, attorneys not traditionally deemed as central to the reproductive rights movement—personal injury and tort lawyers—may be better situated to litigate from a patient-centered mindset. As a result, these lawyers could develop litigation strategies that are more anchored in the approach of the reproductive justice movement.

While this Note advocates the pursuit of institutional liability as opposed to individual claims against physicians, tort claims can also be used against physicians and healthcare institutions whose unequivocal policy is to never provide lifesaving abortion care. A 2020 study showed that “35.3% of U.S. counties, where 38.7% of U.S. women of reproductive age live, have a high Catholic hospital market share.”[326] Many doctors at these hospitals, as well as physicians working at non-Catholic hospital systems, may fall on the side of the “strict constructionists,” individuals who are morally opposed to abortion and who wish for their medical colleagues to follow the most rigid interpretations of abortion ban statutes.[327] Medical malpractice claims against such doctors could instill an understanding that consequences may follow a refusal to treat patients or a harmful delay in treatment. This approach would offer a departure from the current status quo, in which healthcare institutions and their employees can delay or refuse treatment because the only consequences of such actions fall on patients. The California lawsuits against Dignity Health and St. Joseph Health seek to do just that: Both are Catholic-affiliated hospital systems that follow the Ethical and Religious Directives for Catholic Health Services developed by the U.S. Conference of Catholic Bishops—and whose policy is to never provide abortions.[328]

Ultimately, medical malpractice claims and tort litigation against doctors threaten a core concept behind modern reproductive rights jurisprudence: that the doctor is central and indispensable to the procedure.[329] In a post-Dobbs world, advocates have an opportunity to move beyond this paradigm and towards one which is pregnant-person centered. This opportunity is particularly pressing in an era of increased medication abortion thanks to the decentralization of abortions that is taking place through the critical operations of abortion funds, pill providers, and other grassroots organizing.[330] Medication abortion offers patients more power to choose, echoing the premonition of Dr. Robert Hall, an American obstetrician and early advocate for the liberalization of U.S. abortion laws: “When it comes to the doctor, I think he is eventually going to be no more than a technician. This may be humiliating to him. But it is his unavoidable plight if we are to grant women their inherent right to abortion.”[331]

In a world based on the principles of reproductive justice, patients and their needs must be at the center of decision-making. Tort law is a tool in the arsenal of patients, which allows them to seek compensation for harm through monetary damages. Tort law also ideally protects future patients from suffering the same violence by allowing injunctive relief or prompting policy change through the collective influence of patient lawsuits. In this sense, tort law is a mechanism that offers plaintiffs the promise of compensation for past harms and the hope to correct future policy.

C. The Need to Bring Together Diverse Stakeholders

The current healthcare crisis around emergency abortion access makes clear the pressing need to bring together various stakeholders from a range of areas. Though patients and their family members, insurance companies and underwriters, hospital administrators and general counsel, and plaintiff-side medical malpractice and personal injury lawyers may not have the same set of interests or priorities, the shared goal of reducing preventable injuries and even deaths of pregnant people—and perhaps litigious nightmares which might ensue—is one with benefits for all.

Offering patients forums in which to tell their stories and discuss treatment, informed consent options, and more with all stakeholders in the medical system, while also empowering them to come to the table with the ability to sue the medical systems they rely on, could generate real movement within healthcare spaces. It could also force hospitals to develop real procedures that protect (or at least strive to protect) pregnant patients. Such forums might be imperfect, but they would still offer an improvement from the current state of affairs and a step forward.

Meanwhile, hospitals have untapped power to influence abortion policy nationwide. Hospital systems regularly use their lobbying resources in state legislatures when policies threaten their bottom line, often spending millions of dollars.[332] Additionally, while four federal agencies account for the 629 regulatory requirements that health systems, hospitals, and other care providers must comply with,[333] the American Hospital Association is a professional organization that includes over 5,000 hospitals in its membership.[334] The organization conducts legislative and regulatory advocacy efforts, and while it has supported challenges to abortion bans such as Idaho’s through amicus briefs, it could do more to protect patients.[335]

Bringing diverse stakeholders together to at least begin discussing how to create systems that truly provide basic healthcare to all, including pregnant people, is a critical step to take as soon as possible. And we should put patients at the center of the conversation. As long as abortion bans remain, more and more pregnant people will find themselves in harm’s way when they experience emergencies and end up in hospital emergency rooms—or in the parking lots outside.

Conclusion

While the post-Dobbs landscape is messy and complex, pregnant patients facing medical emergencies desperately and urgently need change in the policies on which their lives depend. Tort claims could spark important shifts yet remain largely unexplored in the context of emergency abortion care. Despite the real challenges and obstacles discussed in this Note, opportunities remain for litigation that could both compensate injured plaintiffs and put pressure on healthcare systems to increase immediate access to care for pregnant patients facing medical emergencies. Tort claims that target medical institutions through a theory of corporate liability offer a litigation route with room for creative lawyering in which individual patients sit at the center of advocacy efforts.

Now, more than ever before, pregnant individuals nationwide are at risk for serious bodily injury and death because of inaction by the very people tasked with their lifesaving care. They deserve justice for the physical and emotional harms they needlessly suffer. Litigators should consider using new tools to advocate on behalf of pregnant patients who were denied the lifesaving care they so desperately needed. Action is critical, particularly under a second Trump administration and its continued onslaught on access to reproductive care. While more research at the state level is needed to fully understand the different obstacles that could limit the success of these cases, the tort claims and theories of liability discussed in this Note offer unique mechanisms to put pressure on healthcare organizations and hospital systems. Because those organizations have far more influence and power than individual doctors and nurses, lawsuits targeting hospitals have the potential to create forward-looking change, in addition to providing compensation for individual harms suffered in the past. While nothing can erase the violence inflicted on pregnant people who have suffered needlessly thus far, such claims could help protect future patients from preventable death and harm. Pregnant people deserve far better, and litigators should use every tool available to advocate on their behalf.

Copyright © 2026 Ortal Isaac, J.D. 2025, University of California, Berkeley, School of Law. This Note reflects developments through October 2025. This Note would not exist without the encouragement of Professors Alexa Koenig and Eric Stover, under whose tutelage I began my research in Spring 2024. I am immensely grateful to Professor Koenig for continuing to share her wisdom with me ever since, as well as to Professors Khiara Bridges, Mridula Raman, and Ty Alper for their mentorship, guidance, and care. Special thanks to the participants of the Spring 2024 Human Rights and Social Justice Writing Workshop, my friends in the April 2025 Death Penalty Clinic (Backyard) Writing Workshop, and Jordan Hefcart for their sharp insights on drafts of this piece. Thank you to Jacob Bendicksen for endlessly thinking about this Note with me and supporting me throughout in more ways than I can count. Finally, my sincere thanks to the California Law Review editors who truly went above and beyond in their thoughtful edits.

[1]. “Sepsis is a life-threatening condition that happens when the body’s immune system has an extreme response to an infection . . . . The body’s reaction causes damage to its own tissues and organs . . . . Common signs of sepsis include fever, fast heart rate, rapid breathing, confusion and body pain. It can lead to septic shock, multiple organ failure and death.” Sepsis, World Health Org. (May 3, 2024), https://www.who.int/news-room/fact-sheets/detail/sepsis [https://perma.cc/X9RX-3N6Q].

[2]. See Lizzie Presser, Andrea Suozzo, Sophie Chou & Kavitha Surana, Texas Banned Abortion. Then Sepsis Rates Soared., ProPublica (Feb. 20, 2025), https://www.propublica.org/article/texas-abortion-ban-sepsis-maternal-mortality-analysis?utm_source=substack&utm_medium=email [https://perma.cc/LPD2-42L4]; Kavitha Surana, Abortion Bans Have Delayed Emergency Medical Care. In Georgia, Experts Say This Mother’s Death Was Preventable., ProPublica (Sep. 16, 2024), https://www.propublica.org/article/georgia-abortion-ban-amber-thurman-death [https://perma.cc/SS37-9A9E]; Molly Castle Work, Catholic Hospital Offered a Bucket and Towels to Woman It Denied Abortion, California AG Says, 19th (Oct. 4, 2024), https://19thnews.org/2024/10/catholic-hospital-offered-bucket-towels-woman-abortion/ [https://perma.cc/A3YA-W2S6]; Catherine Lucey, The Tragic Pregnancy Stories Filling the Abortion Campaign Airwaves, Wall St. J. (Apr. 27, 2024), https://www.wsj.com/politics/policy/the-tragic-pregnancy-stories-filling-the-abortion-campaign-airwaves-74c4fa41 [https://perma.cc/M6KY-RBCY]; Selena Simmons-Duffin, In Oklahoma, a Woman Was Told to Wait Until She’s ‘Crashing’ for Abortion Care,NPR (Apr. 25, 2023), https://www.npr.org/sections/health-shots/2023/04/25/1171851775/oklahoma-woman-abortion-ban-study-shows-confusion-at-hospitals [https://perma.cc/ANZ2-UDFH]; Nadine El-Bawab, Tennessee Woman Gets Emergency Hysterectomy After Doctors Deny Early Abortion Care, ABC News (May 31, 2023), https://abcnews.go.com/US/tennessee-woman-gets-emergency-hysterectomy-after-doctors-deny/story?id=99457461 [https://perma.cc/BR34-VEHR]; Selena Simmons-Duffin, Her Miscarriage Left Her Bleeding Profusely. An Ohio ER Sent Her Home to Wait, NPR (Nov. 15, 2022) [hereinafter Simmons-Duffin, Her Miscarriage Left Her Bleeding Profusely], https://www.npr.org/sections/health-shots/2022/11/15/1135882310/miscarriage-hemorrhage-abortion-law-ohio [https://perma.cc/AVU6-ZVBF]; Rosemary Westwood, Bleeding and in Pain, a Pregnant Woman in Louisiana Couldn’t Get Answers, KFF Health News (Jan. 12, 2023), https://kffhealthnews.org/news/article/bleeding-and-in-pain-a-pregnant-woman-in-louisiana-couldnt-get-answers/ [https://perma.cc/8ZRD-4XME]; Petula Dvorak, She Never Wanted an Abortion, Then She Needed One to Save Her Life, Wash. Post (Apr. 25, 2024), https://www.washingtonpost.com/dc-md-va/2024/04/25/abortion-ban-emergency-medical-care-supreme-court/ [https://perma.cc/652T-8YAQ].

[3]. In 2024, Anna Nusslock sought care at Providence St. Joseph Hospital, a Catholic-affiliated hospital in Eureka, California, after her water broke fifteen weeks into her pregnancy. Because fetal heart tones could still be detected, a doctor at the hospital informed Nusslock that the institution’s policy prohibited providing her with an abortion unless her life was at risk. Her husband drove her to a nearby hospital, where she arrived “hemorrhaging and passing a blood clot the size of an apple” and was rushed into surgery. Pam Belluck, California Sues Hospital for Denying Patient an Emergency Abortion, N.Y. Times (Sep. 30, 2024), https://www.nytimes.com/2024/09/30/health/california-abortion-lawsuit-st-joseph-hospital.html [https://perma.cc/PB39-7XFP]. Nusslock said: “I thought I would be safe here [in California] from things like this.” Id. Rachel Harrison was also denied a lifesaving emergency abortion not once, but twice by Dignity Health—over the course of two different pregnancies. “‘While publicly touting their hospitals’ qualifications as reliable emergency services centers, Dignity Health prioritized its own religious directives over the best interests of Rachel’s health and well-being,’ the lawsuit alleges.” Clara Harter, Emergency Abortion Denials by Catholic Hospitals Put Woman in Danger, Lawsuit Claims,L.A. Times (Sep. 30, 2025), https://www.latimes.com/california/story/2025-09-30/california-emergency-abortion-lawsuit [https://perma.cc/67YG-MYJ7].

[4]. Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction ¶¶ 9, 11, Zurawski v. State, No. D-1-GN-23-000968 (Tex. Dist. Ct. Aug. 4, 2023) [hereinafter Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction].

[5]. The Assault on Reproductive Rights in a Post-Dobbs America: Hearing Before the S. Comm. on the Judiciary, 118th Cong. 6 (2023) (testimony of Amanda Zurawski).

[6]. Id.

[7].Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction, supra note 4, ¶ 11; The Assault on Reproductive Rights in a Post-Dobbs America: Hearing Before the S. Comm. on the Judiciary, supra note 5.

       [8]. Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction, supra note 4, ¶ 9.

[9]. Id. ¶ 11.

[10]. Id. ¶ 12.

[11]. Id.

[12]. See Facts Are Important: Understanding and Navigating Viability, Am. Coll. Obstetricians & Gynecologists, https://www.acog.org/advocacy/facts-are-important/understanding-and-navigating-viability [https://perma.cc/QXB2-98PU] (explaining that deliveries before twenty-three weeks have a 5−6 percent survival rate, and “significant morbidity is universal (98–100%) among the rare survivors”).

[13]. Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction, supra note 4, ¶ 13; see also Ayesha Rascoe, In States with Abortion Bans, Hospital Ethics Boards Have the Power to Make Exceptions, NPR (Mar. 12, 2023), https://www.npr.org/2023/03/12/1162917337/in-states-with-abortion-bans-hospital-ethics-boards-have-the-power-to-make-excep [https://perma.cc/FA5N-H73G] (interviewing Dr. Anne Lyerly, professor and OB-GYN: “For example, unfortunately, there has widely been reported situations in which women have had ruptured membranes prior to viability of their pregnancies, which means sort of ruptured membranes several weeks before the baby would be able to survive outside the womb. The standard of care in these cases is to provide a timely abortion to prevent harm to the pregnant woman. There is nothing to be gained. There’s no chance that the pregnancy would be able to continue or that the baby would be able to survive if the pregnancy is prolonged. And in fact, waiting would be against the standard of care and is ethically problematic”).

[14]. The Assault on Reproductive Rights in a Post-Dobbs America: Hearing Before the S. Comm. on the Judiciary, supra note 5, at 6; Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction, supra note 4, ¶ 13.

[15]. The Assault on Reproductive Rights in a Post-Dobbs America: Hearing Before the S. Comm. on the Judiciary, supra note 5, at 6.

[16]. Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction, supra note 4, ¶¶ 12, 15.

[17]. The Assault on Reproductive Rights in a Post-Dobbs America: Hearing Before the S. Comm. on the Judiciary, supra note 5, at 7.

[18]. Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction, supra note 4, ¶¶ 19–20.

[19]. Id. ¶¶ 21, 23.

[20]. Id. ¶ 22.

[21]. Id. ¶¶ 23–24.

[22]. See id. ¶ 25.

[23]. Id. ¶ 144.

[24]. State v. Zurawski, 690 S.W.3d 644, 653–54 (Tex. 2024).

[25]. See generally Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction, supra note 4.

[26]. See, e.g., Pooja Salhotra & Eleanor Klibanoff, Amid Support from Doctors Group, Bill to Clarify Texas’ Abortion Ban Does Little to Save Lives, Critics Say, Tex. Trib. (Mar. 27, 2025), https://www.texastribune.org/2025/03/27/texas-abortion-bill-senate-31/ [https://perma.cc/F5Z7-JPDC].

[27]. See generally, e.g.,Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction, supra note 4; Isabella Volmert, Lawsuit Challenging Indiana Abortion Ban Survives a State Challenge,Associated Press (Apr. 4, 2024), https://apnews.com/article/indiana-appeals-court-religious-freedom-law-abortion-4da0cd6d585e69ede87bea2ee2da2896 [https://perma.cc/8W6V-VHD6]; Oklahoma Call for Reproductive Justice v. Drummond (Oklahoma),Ctr. for Reprod. Rts., https://reproductiverights.org/case/post-roe-state-abortion-ban-litigation/oklahoma-call-for-reproductive-justice-v-oconnor-2/ [https://perma.cc/LV4U-GQT6]; Sabrina Talukder, In Idaho v. United States, the Supreme Court Must Reckon with the Post-Dobbs Reality It Created, Ctr. Am. Progress (Feb. 26, 2024), https://www.americanprogress.org/article/in-idaho-v-united-states-the-supreme-court-must-reckon-with-the-post-dobbs-reality-it-created/ [https://perma.cc/SY3K-VTTV].

[28]. Kavitha Surana, Maternal Deaths Are Expected to Rise Under Abortion Bans, but the Increase May Be Hard to Measure, ProPublica (July 27, 2023), https://www.propublica.org/article/tracking-maternal-deaths-under-abortion-bans [https://perma.cc/D447-L82L].

[29]. See Katha Pollitt, Maternal Mortality Is Rising, and Pro-Lifers Don’t Care, Nation (July 21, 2023), https://www.thenation.com/article/society/maternal-mortality/ [https://perma.cc/JJ3N-TXMR]; Eugene Declercq, Ruby Barnard-Mayers, Laurie C. Zephyrin & Kay Johnson, The U.S. Maternal Health Divide: The Limited Maternal Health Services and Worse Outcomes of States Proposing New Abortion Restrictions, Commonwealth Fund (Dec. 14, 2022), https://www.commonwealthfund.org/publications/issue-briefs/2022/dec/us-maternal-health-divide-limited-services-worse-outcomes [https://perma.cc/AQQ3-UQV8].

[30]. See Latoya Hill, Alisha Rao, Samantha Artiga & Usha Ranji, Racial Disparities in Maternal and Infant Health: Current Status and Efforts to Address Them, KFF (Oct. 25, 2024), https://www.kff.org/racial-equity-and-health-policy/issue-brief/racial-disparities-in-maternal-and-infant-health-current-status-and-efforts-to-address-them/ [https://perma.cc/F5Q5-AQSW]. See generally Donna L. Hoyert, CDC, Maternal Mortality Rates in the United States, 2021 (2023), https://www.cdc.gov/nchs/data/hestat/maternal-mortality/2021/maternal-mortality-rates-2021.htm [https://perma.cc/Q59L-V2GD].

[31]. See Liza Fuentes, Inequity in US Abortion Rights and Access: The End of Roe Is Deepening Existing Divides,Guttmacher (Jan. 17, 2023), https://www.guttmacher.org/2023/01/inequity-us-abortion-rights-and-access-end-roe-deepening-existing-divides [https://perma.cc/FMS2-V79S]; Noel Lyn Smith & Maddy Keyes, Indigenous Women Navigate Abortion Access Hurdles Post-Roe, Source NM (Aug. 29, 2023), https://sourcenm.com/2023/08/29/indigenous-women-navigate-abortion-access-hurdles-post-roe [https://perma.cc/PA6P-M9DN]. The impact of abortion bans is also deeply intertwined with the risk factors that put pregnant people at higher risk for obstetric complications. See Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction, supra note 4, ¶¶ 159–61 (“Racial and ethnic disparities in pregnancy-related health outcomes are well-documented throughout the medical literature. Research has shown that, as compared to non-Hispanic white women, Black women in the U.S. are considerably more likely to experience obstetric complications like hypertensive disorders and preterm birth and to die from complications like preeclampsia, eclampsia, obstetric embolism, hemorrhage, and postpartum cardiomyopathy. Additionally, Black people in the United States are more likely to have preexisting conditions that may be exacerbated by pregnancy such as high blood-pressure, asthma, diabetes, sickle cell disease, and lupus. The Texas Maternal Mortality Report further notes that ‘delay in referring or access to treatment,’ ‘lack of standardized policies/procedures,’ ‘failure to screen/inadequate assessment of risk,’ ‘lack of continuity of care,’ and ‘lack of access/financial resources’ are all contributing factors in maternal deaths in Texas. Barriers such as these disproportionately impact Black patients. Black patients face significant barriers to quality, equitable health care, including delays in care, systemic discrimination, and implicit biases in their interactions with health care providers. Black women in Texas also face disproportionate poverty: 19.5% of Black Texans lives in poverty compared to 10.5% of white Texans. And 15.5% of Texan women live in poverty compared to 13% of Texan men.” (footnotes omitted)).

[32]. See Cassandra Jaramillo & Kavitha Surana, A Texas Woman Died After the Hospital Said It Would Be a Crime to Intervene in Her Miscarriage, Tex. Trib. (Oct. 30, 2024), https://www.texastribune.org/2024/10/30/texas-abortion-ban-josseli-barnica-death-miscarriage/ [https://perma.cc/5DN7-UW8H].

[33]. Seegenerally Fabricio J. Alarcon, The Migrant Crisis and Access to Health Care,8 Del. J. Pub. Health 20 (2022).

[34]. Seegenerally Kim Korinek & Ken R. Smith, Prenatal Care Among Immigrant and Racial-Ethnic Minority Women in a New Immigrant Destination: Exploring the Impact of Immigrant Legal Status, 72 Soc. Sci. & Med. 1695 (2011).

[35]. Priscilla Alvarez, ICE Has Deported Nearly 200k People Since Trump Returned to Office, on Track for Highest Level in a Decade,CNN (Aug. 28, 2025), https://www.cnn.com/2025/08/28/politics/ice-deportations-immigrants-trump [https://perma.cc/W4YD-VSFK].

[36]. Lauren Kaori Gurley, Federica Cocco & Andrew Ackerman, More Americans Take on a Second Job or Side Hustle. They Come at a Cost., Wash. Post (Nov. 2, 2025), https://www.washingtonpost.com/business/2025/01/28/americans-work-two-jobs-market-side-hustle/ [https://perma.cc/AUP2-C28Q].

[37]. Elise Gould, Over 60% of Low-Wage Workers Still Don’t Have Access to Paid Sick Days on the Job, Econ. Pol’y Inst.: Working Econ. Blog (Sep. 23, 2022, at 14:47 PT), https://www.epi.org/blog/over-60-of-low-wage-workers-still-dont-have-access-to-paid-sick-days-on-the-job/ [https://perma.cc/KK8B-23PV].

[38]. Steven Ross Johnson, Millions of Americans Lack Reliable Transportation. It May Affect Their Health., U.S. News (Jan. 11, 2024), https://www.usnews.com/news/health-news/articles/2024-01-11/millions-of-americans-lack-reliable-transportation [https://perma.cc/B9PZ-92FJ].

[39]. Jonathan Koltai, Jess Carson & Tyrus Parker, Childcare Remains out of Reach for Millions in 2021, Leading to Disproportionate Job Losses for Black, Hispanic, and Low-Income Families, Univ. of N.H. (Dec. 23, 2021), https://carsey.unh.edu/publication/childcare-remains-out-reach-millions-2021-leading-disproportionate-job-losses-black-hispanic-low [https://perma.cc/34C8-NRUA].

[40]. Jaramillo & Surana, supra note 32.

[41]. Id.

[42]. Id.

[43]. Charlotte Alter, Amanda Zurawski Won’t Give up the Fight for Reproductive Rights, Time (Feb. 20, 2025), https://time.com/7216391/amanda-zurawski-texas-reproductive-rights/ [https://perma.cc/AY89-H6HG].

[44]. Team, Zurawski v Texas, https://www.zurawskivtexas.com/team [https://perma.cc/E5YC-24CB].

[45]. Together Films, Zurawski v Texas – Official Trailer (YouTube, Oct. 21, 2024), https://youtu.be/M3QdzIgJis0?si=VAWeJxmwY_EmU8zU (on file with the California Law Review).

[46]. Video posted by TIME (@time), Instagram (Feb. 27, 2025), https://www.instagram.com/time/reel/DGlsv9sM5H6/ (on file with the California Law Review); Jaramillo & Surana, supra note 32.

[47]. See William Melhado, Texas AG Appeals Judge’s Order That Allows Women with Complicated Pregnancies to Get Abortions,Tex. Trib. (Aug. 4, 2023), https://www.texastribune.org/2023/08/04/texas-abortion-ban-lawsuit/ [https://perma.cc/K2VH-9VH2].

[48]. Floriane Borel, Samira Damavandi & Irum Taqi, Six Months in: How the Trump Administration Is Undermining Sexual and Reproductive Health and Rights Globally, Guttmacher (Aug. 1, 2025), https://www.guttmacher.org/2025/08/six-months-how-trump-administration-undermining-sexual-and-reproductive-health-and-rights [https://perma.cc/LZ7H-SRY3].

[49]. See generallyInteractive Map: US Abortion Policies and Access After Roe,Guttmacher, https://states.guttmacher.org/policies/ [https://perma.cc/AM5A-B3J9].

[50]. See Mary Clare Jalonick, Republicans Block Bill to Protect Contraception Access as Democrats Make Election-year Push, Associated Press (June 5, 2024), https://apnews.com/article/contraception-senate-abortion-biden-trump-reproductive-rights-3f9e8546624a3acf8e64d1138fcb84b1 [https://perma.cc/8EZ7-RJSS]; see also Ryan Cooper, The Republican Party Is Coming for Birth Control, Am. Prospect (June 6, 2024), https://prospect.org/health/2024-06-06-republican-party-coming-for-birth-control/ [https://perma.cc/JXP5-QW49] (arguing that, following the Supreme Court’s decision to overturn Roe v. Wade despite the principle of stare decisis, conservatives are mounting support to overrule constitutional precedent protecting the right to contraception).

[51]. See Nick Reynolds, Republicans Declare War on Sex Education, Newsweek (May 10, 2023), https://www.newsweek.com/republicans-declare-war-sex-education-seek-restrictions-public-schools-1777650 [https://perma.cc/79MD-PJTW]; Hannah Fingerhut, Some GOP-led States Are Chipping Away at Sex Education in K-12 Schools, Associated Press (Oct. 6, 2023), https://apnews.com/article/sex-education-us-laws-kentucky-florida-mississippi-bd6fffcb3a9a25babc32a143001f4ae1 [https://perma.cc/V6F7-C67S].

[52]. See Presser et al., supra note 2 (analyzing Texas’s hospital discharge data to calculate the impact of the state’s abortion ban on maternal mortality).  ProPublica chronicled the CDC’s failure to ask states to track deaths linked to abortion bans and to require state maternal mortality review committees to examine the role of abortion bans in statewide maternal mortality, which has led to a dearth of information about post-Dobbs maternal mortality. Some states, including Texas, have forgone federal funding to avoid sharing maternal death data with the CDC. Scientists have likened this to “pushing [the impact of abortion bans on maternal mortality] under the rug”: without data about the issue, it’s far simpler to pretend it does not exist. See Kavitha Surana, Robin Fields & Ziva Branstetter, The CDC Hasn’t Asked States to Track Deaths Linked to Abortion Bans, ProPublica (Dec. 20, 2024), https://www.propublica.org/article/abortion-ban-deaths-cdc-maternal-health-care [https://perma.cc/6T2C-6R4C].

[53]. Presser et al., supra note 2.

[54]. Id.

[55]. See Amy Littlefield, “She Had a Heartbeat Too”: Waiting for One Dead Woman, Nation (Mar. 14, 2023), https://www.thenation.com/article/society/texas-abortion-lawsuit/ [https://perma.cc/G7XA-V9CQ]. (“In Ireland, her name was Savita Halappanavar. She was a dentist. Her water broke at 17 weeks, like Amanda Zurawski’s. Doctors in Ireland told her that they could not end her pregnancy because the fetus was protected under Ireland’s Eighth Amendment as long as it still had a heartbeat. She begged for an abortion. Like Zurawski, she developed sepsis. Then she died. She was 31. Her death ignited a political revolution that liberalized Ireland’s abortion laws. Thousands of people rallied in the streets holding banners with Savita’s portrait that read ‘Never again.’ Six years later, Irish voters repealed the Eighth Amendment in a referendum. Under the right circumstances, one death is enough.”).

[56]. See Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction, supra note 4, ¶¶ 19, 23, 71, 233, 235.

[57]. See El-Bawab, supra note 2.

[58]. See Simmons-Duffin, supra note 2 (discussing how patients who arrive at the emergency room with heavy bleeding and other severe symptoms are not treated by hospital staff “unless [they] are crashing in front of [the doctors] or [their] blood pressure goes so high that [they] are fixing to have a heart attack”); see also Caroline Kitchener & Dan Diamond, She Filed a Complaint After Being Denied an Abortion. The Government Shut Her Down,Wash. Post (Jan. 19, 2024), https://www.washingtonpost.com/politics/2024/01/19/oklahoma-abortion-emtala/ [https://perma.cc/GS2H-ZEFJ] (chronicling how the Biden administration rejected patient Jaci Statton’s complaint that her case was handled in violation of the Emergency Medical Treatment and Labor Act (EMTALA)).

[59]. See generally David S. Cohen, Greer Donley & Rachel Rebouché, Rethinking Strategy After Dobbs,75 Stan. L. Rev. Online 1 (2022).

[60]. Thus far, torts have been utilized far more by anti-abortion activists to make abortion look extremely unsafe—a claim that is contrary to medical evidence. For example, in 2023, a family filed a wrongful death claim against a hospital who treated a woman who died not long after undergoing a legal abortion at a different facility. See David Wilson, Lawsuit: Pahrump Woman Died After Not Being Treated Properly Following Abortion,Pahrump Valley Times (Sep. 27, 2023), https://pvtimes.com/uncategorized/lawsuit-pahrump-woman-died-after-not-being-treated-properly-following-abortion-124871/ [https://perma.cc/VDB9-YMQ2].

[61]. See Jaramillo & Surana, supra note 32.

[62]. Chad Follmer, an insurance broker based in San Francisco, told Business Insurance that most insurers are “remaining silent” on questions regarding emergency abortions and abortion criminal bans, and that insurance companies are “trying to get their arms around it[.]” “Everyone is ‘kind of waiting for someone else to blink.’” Judy Greenwald, Dobbs Decision Casts Shadow on Med Mal, Bus. Ins. (Oct. 5, 2022), https://www.businessinsurance.com/dobbs-decision-casts-shadow-on-med-mal-dobbs-vs-jackson-women%C2%92s-health-organiza [https://perma.cc/A66Q-RCME].

[63]. See Harris Meyer, Malpractice Lawsuits over Denied Abortion Care May Be on the Horizon,KFF Health News (June 23, 2023), https://kffhealthnews.org/news/article/malpractice-lawsuits-denied-abortion-care/ [https://perma.cc/6EJV-UHT9]. See generally Complaint, Harrison v. Dignity Health, No. CGC-25-629618 (Cal. Super. Ct. S.F. Cnty. Sep. 26, 2025) [hereinafter Harrison Complaint].

[64]. The first would-be medical malpractice tort action targeting a hospital was announced in October 2024, after delayed abortion care caused the death of Amber Thurman in Georgia. Months later, however, no complaint has emerged, suggesting that the family may be in the process of settling with the hospital system it announced it planned to sue. See Attorney Ben Crump and Family of Amber Thurman to Demand Justice, Address Maternal Health Crisis in Georgia, BenCrump.com (Oct. 1, 2024), https://bencrump.com/press/attorney-ben-crump-and-family-of-amber-thurman-to-demand-justice-address-maternal-health-crisis-in-georgia/ [https://perma.cc/Y3RV-387C].

[65]. Rachel’s partner, Marcell Johnson, is a coplaintiff in the lawsuit. Harrison Complaint, supra note 63, at 2.

[66]. See generally Harrison Complaint, supra note 63; Complaint, Nusslock v. St. Joseph Health of N. Cal., LLC, No. CV2500674 (Cal. Super. Ct. Humboldt Cnty. Apr. 1, 2025) [hereinafter Nusslock Complaint]; Complaint for Damages and Equitable Relief, Roe v. St. Joseph Health N. Cal., LLC, No. CV2402362 (Cal. Super. Ct. Humboldt Cnty. Dec. 12, 2024) [hereinafter Roe Complaint].

[67].Harrison Complaint, supra note 63, ¶¶ 131–38.

[68]. Harrison Complaint, supra note 63, ¶ 37; Roe Complaint, supra note 66, ¶ 22.

[69]. Roe Complaint, supra note 66, ¶ 22 (quoting the U.S. Conf. of Catholic Bishops, Ethical and Religious Directives for Catholic Health Care Services 18 (6th ed. 2018), https://www.usccb.org/resources/ethical-religious-directives-catholic-health-service-sixth-edition-2016-06_0.pdf [https://perma.cc/UCL6-P5MB]).

[70]. Joseph S. Kass & Rachel V. Rose, Medical Malpractice Reform: Historical Approaches, Alternative Models, and Communication and Resolution Programs,18AMA J. Ethics 299, 299 (2016).

[71]. See David M. Studdert, Michelle M. Mello & Troyen A. Brennan, Medical Malpractice,350 NEJM 283, 283 (2004).

[72]. Id. at 299–300.

[73]. Michael J. Bono, Harrison R. Wermuth & John E. Hipskind, Medical Malpractice, in StatPearls (2022) (ebook), https://www.ncbi.nlm.nih.gov/books/NBK470573/ [https://perma.cc/K2WG-R6MB].

[74]. See, e.g., Carolyn Caccese, The Relationship Between Malpractice Litigation & Patient Safety, Salenger Sack Kimmel & Bavaro LLP: SSKB News (Sep. 16, 2024), https://sskblaw.com/the-relationship-between-malpractice-litigation-patient-safety [https://perma.cc/QGE3-YWZE] (“When healthcare organizations are held accountable through litigation, they are more likely to review their practices and address any deficiencies, ultimately improving patient safety for future patients.”).

[75]. Studdert, Mello & Brennan, supra note 71, at 287.

[76]. Our Movement, Patient Safety Movement, https://psmf.org/psmf-our-movement[https://perma.cc/RYC9-NGLV]. The patient safety movement gained national attention particularly with The Institute of Medicine’s 2000 publication of To Err Is Human: Building a Safer Health System, a report that highlighted the numbers relating to patient harms and deaths stemming from preventable human error. The report estimated that nationally, at least 44,000 and as many as a potential 98,000 Americans died each year because of medical errors. See To Err Is Human: Building a Safer Health System 1(Linda T. Kohn, Janet M. Corrigan & Molla S. Donaldson eds., 2000).

[77]. Our Movement, supra note 76; see alsoActionable Evidence-Based Practices, Patient Safety Movement, https://psmf.org/actionable-evidence-based-practices/page/2/?et_blog [https://perma.cc/5EA9-ZX7S]; Early Detection and Treatment of Sepsis, Patient Safety Movement (Apr. 17, 2024), https://psmf.org/aebp-publications/early-detection-and-treatment-of-sepsis/ [https://perma.cc/2HML-J5W7].

[78]. See Andrew Jay McClurg, Fight Club: Doctors vs. Lawyers–A Peace Plan Grounded in Self-Interest, 83 Temp. L. Rev. 309, 313–22, 329 n.130 (2011).

[79]. Peter P. Budetti, Kaiser Fam. Found., Medical Malpractice Law in the United States 14 (2005), https://www.kff.org/wp-content/uploads/2013/01/medical-malpractice-law-in-the-united-states-report.pdf [https://perma.cc/RSN8-W6UP].

[80]. See, e.g., Medical Liability: New Ideas for Making the System Work Better for Patients:Hearing Before the S. Comm. on Health, Educ., Lab., & Pensions, 109th Cong. 19 (2006) (“Tort law’s punitive, individualistic, adversarial approach is antithetical to the nonpunitive, systems-oriented, cooperative strategies espoused by patient safety leaders. Litigation entails secrecy and blame, whereas modern quality improvement strategies demand transparency and focus on systems of care, not individuals.”).

[81]. Michael D. Frakes, The Surprising Relevance of Medical Malpractice Law, 82 U. Chi. L. Rev. 317, 327 n.19 (2015).

[82]. José R. Guardado,AMA, Policy Research Perspectives: Medical Liability Claim Frequency Among U.S. Physicians 6 (2017), https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/public/government/advocacy/policy-research-perspective-medical-liability-claim-frequency.pdf [https://perma.cc/TGH3-V63M].

[83]. Kelly E. Wong, P. Divya Parikh, Kwon C. Miller & Mark R. Zonfrillo, Emergency Department and Urgent Care Medical Malpractice Claims 2001-15, 22 W.J. Emergency Med. 333, 334 (2021).

[84]. Guardado, supra note 82, at 1.

[85]. Roosa Tikkanen, Munira Z. Gunja, Molly FitzGerald & Laurie C. Zephyrin, Maternal Mortality and Maternity Care in the United States Compared to 10 Other Developed Countries, Commonwealth Fund (Nov. 18, 2020), https://www.commonwealthfund.org/publications/issue-briefs/2020/nov/maternal-mortality-maternity-care-us-compared-10-countries [https://perma.cc/J42V-TXBY] (concluding that the United States had the highest rate of maternal mortality among developed countries even before Dobbs).

[86]. See generally Munira Z. Gunja, Evan D. Gumas, Relebohile Masitha & Laurie C. Zephyrin, Insights into the U.S. Maternal Mortality Crisis: An International Comparison, Commonwealth Fund (June 4, 2024), https://www.commonwealthfund.org/publications/issue-briefs/2024/jun/insights-us-maternal-mortality-crisis-international-comparison [https://perma.cc/DSA7-L5UF].

[87]. Id. at 5.

     [88]. Budetti, supra note 79, at 1, 4.

     [89]. Kass & Rose, supra note 70, at 301.

[90]. Id.

     [91]. Sarah Edwards, States Most Affected by Medical Malpractice, Forbes: Advisor (Dec. 18, 2023), https://www.forbes.com/advisor/legal/medical-malpractice/medical-malpractice-cases-by-state/ [https://perma.cc/EH7J-S5RR].

[92]. See generally Leslie Reagan, Victim or Accomplice: Crime, Medical Malpractice, and the Construction of the Aborting Woman in American Case Law, 1860s-1970, 10 Colum. J. Gender & L. 311 (2001).

[93]. Id. at 317.

[94]. Id. at 317–18.

[95]. Id. at 319.

[96]. Id. at 320.

[97]. Id. at 319.

[98]. See generally Inst. of Med., The Future Of Public Health (1988).

[99]. See generally Michael J. Saks & Stephan Landsman, The Paradoxes of Defensive Medicine, 30 Health Matrix 25 (2020).

[100]. Id.; see also Michael Rothberg, Joshua Class, Tara F. Bishop, Jennifer Friderici, Reva Kleppel & Peter K. Lindenauer, The Cost of Defensive Medicine on Three Hospital Medicine Services, 174 JAMA Internal Med. 1867(2014).

[101]. See generally Daniel P. Kessler & Mark McClellan, Do Doctors Practice Defensive Medicine? (Nat’l Bureau of Econ. Rsch., Working Paper No. 5466, 1996); Mario Plebani, Defensive Medicine and Diagnostic Testing, 1 De Gruyter 151 (2014).

[102]. See Jake Miller, Does Defensive Medicine ‘Work’?, Harv. Med. Sch. (Nov. 4, 2015), https://hms.harvard.edu/news/does-defensive-medicine-work-0 [https://perma.cc/GWG6-XSYV]; see also Anupam B. Jena, Lena Schoemaker, Jay Bhattacharya & Seth A. Seabury, Physician Spending and Subsequent Risk of Malpractice Claims: Observational Study, 2015 BMJ 1, 3 (using rate of caesarean sections as an indicator of physician response to malpractice liability, finding that “[g]eographic areas with greater [malpractice liability exposure] have been associated with higher caesarean delivery rates”).

[103]. See generally Dov Fox, The Abortion Double Bind, 113 Am. J. Pub. Health 1068 (2023); Christian De Vos, Michele Heisler, William Jaffe, Payal Shah, Tamya Cox-Touré, Priya Desai, Nimra J. Chowdhry, Risa Kaufman & Rabia Muqaddam, Physicians for Hum. Rts, Okla. Call for Repro. Just. & Ctr. Repro. Rts., No One Could Say: Accessing Emergency Obstetrics Information as a Prospective Prenatal Patient in Post-Roe Oklahoma 4(2023), https://reproductiverights.org/wp-content/uploads/2023/04/OklahomaAbortionBanReport_Full_SinglePages-NEW-4-27-23.pdf [https://perma.cc/7VYF-BRNL] (“American Medical Association President Jack Resneck, Jr. has decried the ‘chaos’ into which health care has been thrust since the Dobbs decision, describing physicians as ‘caught between good medicine and bad law,’ struggling to ‘meet their ethical duties to patients’ health and well-being, while attempting to comply with reckless government interference in the practice of medicine that is dangerous to the health of . . . patients . . . . Physicians and other health care professionals must attempt to comply with vague, restrictive, complex, and conflicting state laws that interfere in the practice of medicine.’” (alterations in original)).

[104]. Miss. Code Ann. §§ 41-41-45, 97-3-3.

[105]. See Eleanor Klibanoff, Texans Who Perform Abortions Now Face up to Life in Prison, $100,000 Fine, Tex. Trib. (Aug. 25, 2022), https://www.texastribune.org/2022/08/25/texas-trigger-law-abortion/ [https://perma.cc/L5SJ-BPJP]; see alsoInterim Update:Abortion-Related Crimes After Dobbs, Tex. Dist. & Cnty. Att’ys Ass’n (June 24, 2022), https://www.tdcaa.com/legislative/dobbs-abortion-related-crimes/ [https://perma.cc/3L2T-P3HD].

[106]. See generally Erika L. Sabbath, Samantha M. McKetchnie & Kavita S. Arora, US Obstetrician-Gynecologists’ Perceived Impacts of Post-Dobbs v Jackson State Abortion Bans, 7 JAMA Network Open 1 (2024); see also Kavitha Surana, Their States Banned Abortion. Doctors now Say They Can’t Give Women Potentially Lifesaving Care,ProPublica (Feb. 26, 2024), https://www.propublica.org/article/abortion-doctor-decisions-hospital-committee [https://perma.cc/EKN7-K4XA] (discussing an OB-GYN’s experience as a physician in a banned state: “‘We are on the front lines,’ he said. ‘At the end of the day, the patients are staring right in our faces.’ Late last year, he sighed heavily as he counseled the woman whose baby was developing without a skull and gently told her what he tells all of his patients in her position: that he had the training to help her, but because of Tennessee’s laws, he might face prosecution and jail time if he did. He had a baby at home and couldn’t take that risk, he explained. Instead he would refer her to options outside the state”).

[107]. See Surana, supra note 106 (“No doctor wants to be the first to stand trial. ‘I don’t know how you can overinterpret the law when you are looking at jail time,’ said Dr. Dawn Bingham, an OB-GYN in South Carolina. ‘A prudent person would hear that and go, “Well I guess I will interpret that to be as safe as possible.”’”).

[108]. See Sabbath, McKetchnie & Arora, supra note 106 (“One participant recounted the visceral nature of this fear: ‘I’m in the [operating room] dry heaving. I’m not dry heaving because of this surgery. I know how to do this surgery. I trained for this surgery. I trained for the stress of treating an unstable . . . ectopic pregnancy. I did not train for, I am not ready for thinking about, “Is this the case that’s gonna make me a felon?”’”).

[109]. Morning Edition, Arizona Attorney General Says She Won’t Enforce a 164-Year-Old Abortion Law,NPR(Apr. 12, 2024), npr.org/2024/04/12/1244265593/arizona-attorney-general-says-she-wont-enforce-a-164-year-old-abortion-law [https://perma.cc/ZM7M-54VJ].

[110]. See Jessica Boehm, “I have no intention to break an established law”: Arizona Doctors Unlikely to Perform Illegal Abortions, Axios Phx.(Apr. 18, 2024), https://www.axios.com/local/phoenix/2024/04/18/arizona-abortion-access-doctors-illegal-prosecution [https://perma.cc/TS4S-QDBE] (“‘I have no intention to break an established law just because an attorney says they’re not going to prosecute,’ Ronald Yunis, a physician at Acacia Women’s Center, told Axios Phoenix.”).

[111]. Sabbath, McKetchnie & Arora, supra note 106.

[112]. Chelsea Tejada, Texas’ Bounty Hunter Abortion Ban Is a Dire Warning of What Lays Ahead for Our Reproductive Rights, ACLU (Mar. 17, 2022), https://www.aclu.org/news/reproductive-freedom/texas-bounty-hunter-abortion-ban-is-a-dire-warning-of-what-lays-ahead-for-our-reproductive-rights [https://perma.cc/TD8R-3DCH].

[113]. D&E is the standard procedure for abortion after fifteen weeks of gestation. See Dilation and Evacuation (D&E),Kaiser Permanente, https://healthy.kaiserpermanente.org/health-wellness/health-encyclopedia/he.dilation-and-evacuation-d-e.tw2462 [https://perma.cc/LR9T-QPWU]; Whitney Arey, Klaira Lerma, Anitra Beasley, Lorie Harper, Ghazaleh Moayedi & Kari White, A Preview of the Dangerous Future of Abortion Bans — Texas Senate Bill 8, 387 NEJM 387, 388–90 (2022).

[114]. Arey et al., supra note 113, at 389.

[115]. D&C is a procedure in which tissue is removed from a uterus. Dilation and Curettage (D&C),Mayo Clinic (Nov. 7, 2023), https://www.mayoclinic.org/tests-procedures/dilation-and-curettage/about/pac-20384910 [https://perma.cc/67NN-AFL4].

[116]. Arey et al., supra note 113, at 390.

[117]. Id.

[118]. Id.

[119]. See generally Dov Fox, Medical Disobedience, 136 Harv. L. Rev. 1032 (2023).

[120]. Selena Simmons-Duffin, Doctors Who Want to Defy Abortion Laws Say It’s Too Risky,NPR (Nov. 23, 2023), https://www.npr.org/sections/health-shots/2022/11/23/1137756183/doctors-who-want-to-defy-abortion-laws-say-its-too-risky [https://perma.cc/23JX-BF53].

[121]. See, e.g.,Noel León, Introducing the Abortion Defense Network, Nat’l Women’s L. Ctr. (Mar. 8, 2023), https://nwlc.org/introducing-the-abortion-defense-network/ [https://perma.cc/CG5E-PHYF].

[122]. See Alan Braid, Opinion, Why I Violated Texas’s Extreme Abortion Ban,Wash. Post (Sep. 18, 2021), https://www.washingtonpost.com/opinions/2021/09/18/texas-abortion-provider-alan-braid/ [https://perma.cc/C3W9-5NQX]; see also Surana, supra note 106 (“Doctors described the position they’ve been put in — denying abortions to high-risk patients who are begging for them — as ‘distressing,’ ‘untenable’ and ‘insane.’ Speaking out about the broken system felt like the only way to not be complicit, Osmundson said. ‘It’s going to take physicians coming together and saying: “We’re not going to participate in this. We’re going to do what we think is right for patients.”’”).

[123]. Simmons-Duffin, supra note 120.

[124]. See Sabbath, McKetchnie & Arora, supra note 106 (“Many participants described needing to delay medically necessary care until patients were at risk of death or permanent impairment, or the fetal heart stopped spontaneously. One said, ‘The way our legal teams interpreted it, until they became septic or started hemorrhaging, we couldn’t proceed . . . [it] puts women in a very challenging, risky position. Is a 5% risk of death enough? Does it take 20%? Does it take 50%? What is enough legally? And the legal people seem to have a different definition that also just feels horrible, to say until you’re at a greater than likely chance of dying, you can’t make a decision.’”).

[125]. See Maria Godoy, Most Americans Support Abortion for Pregnancy-Related Emergencies, NPR (Mar. 7, 2024), https://www.npr.org/sections/health-shots/2024/03/07/1236344392/abortion-politics-poll-miscarriage-pregnancy-emergencies-kff# [https://perma.cc/NFT7-RFFE].

[126]. Abortion Laws,Tex. State L. Libr.(Aug. 21, 2025), https://guides.sll.texas.gov/abortion-laws/civil-penalties [https://perma.cc/G9PT-XQDT].

[127]. See Brittni Frederiksen, Usha Ranji, Ivette Gomez & Alina Salganicoff, KFF, A National Survey of OBGYNs’ Experiences After Dobbs (2023), https://www.kff.org/womens-health-policy/report/a-national-survey-of-obgyns-experiences-after-dobbs/ [https://perma.cc/XX8T-WUEU] (“Over four in ten (42%) OBGYNs report that they are very or somewhat concerned about their own legal risk when making decisions about patient care and the necessity of abortion. This rises to more than half of OBGYNs practicing in states with gestational limits (59%) and abortion bans (61%).”); see also Mariel Padilla, Abortion Bans Are Causing ‘Chilling Effect’ for OBGYNs, Study Says, 19th (June 21, 2023), https://19thnews.org/2023/06/obgyns-abortion-miscarriages-study/ [https://perma.cc/QMY5-L6WE] (discussing the KFF National Survey of OBGYNs’ Experiences After Dobbs to show a “chilling effect” among doctors in states with abortion bans); Sabbath, McKetchnie & Arora, supra note 106, at 5–6 (finding that abortion bans have created heavy emotional, moral, and physical burdens on OB-GYNs who have to choose between upholding their duty of care and violating the law and explaining that “[i]n addition to widespread distress and anxiety, the state of hypervigilance we observed in several participants—constantly worrying about potential consequences of providing care or counseling—increases the risk for longer-term physical and mental health problems”).

[128]. J. David Goodman, Abortion Ruling Keeps Texas Doctors Afraid of Prosecution, N.Y. Times (Dec. 13, 2023), https://www.nytimes.com/2023/12/13/us/texas-abortion-doctor-prosecution.html [https://perma.cc/2AUJ-BK9G].

[129]. “Molar pregnancy happens when a fertilized egg has too many chromosomes. It does not develop into a viable fetus. It is usually a benign condition, but in about 15% of cases, like Jaci’s, it is cancerous. Her doctor told her she was at risk of hemorrhage and even death, but that she couldn’t get treated there. The treatment for a patient in her condition is a dilation and curettage or D&C [—] an abortion procedure that clears pregnancy tissue from the uterus.” Selena Simmons-Duffin, supra note 4.

[130]. Pam Belluck, Legal Actions Seek Guarantee of Abortion Access for Patients in Medical Emergencies, N.Y. Times (Sep. 12, 2023), https://www.nytimes.com/2023/09/12/health/abortion-rights-lawsuits.html [https://perma.cc/6G83-U2EH].

[131]. Selena Simmons-Duffin, How Hospitals Decide What Qualifies as a Life Threatening Emergency to Allow Abortion,NPR (Apr. 25, 2023), https://www.npr.org/2023/04/25/1172005589/how-hospitals-decide-what-qualifies-as-a-life-threatening-emergency-to-allow-abo [https://perma.cc/34DS-8N8E].

[132]. Selena Simmons-Duffin, ‘I’ll Lose My Family.’ A Husband’s Dread During an Abortion Ordeal in Oklahoma, NPR (May 1, 2023), https://www.npr.org/sections/health-shots/2023/05/01/1172973274/oklahoma-abortion-ban-exception-life-of-mother-molar-pregnancy [https://perma.cc/AT9N-2MBG].

[133]. Belluck, supra note 130.

[134]. Kitchener & Diamond, supra note 58.

[135]. Id. Statton also filed an Emergency Medical Treatment & Labor Act (EMTALA) complaint, which was rejected. Her medical records noted that she “desired discharge home”—a fact that she found infuriating: “‘I was not okay, I was not fine,’ said Statton, who ultimately traveled out of state to get an abortion. ‘I remember being mad whenever I read [the medical records].’” Id.

[136]. Belluck, supra note 130.

[137]. Plaintiffs’ First Amended Verified Petition for Declaratory Judgment & Application for Temporary & Permanent Injunction ¶¶ 85, 87, Zurawski v. State, No. D-1-GN-23-000968 (Tex. Dist. Ct. Aug. 4, 2023).

[138]. Id. ¶¶ 88–89.

[139]. Id. ¶¶ 91–92.

[140]. See generally Moyle v. United States, 144 S. Ct. 2015 (2024).

[141]. Julie Luchetta, As Emergency Airlifts for Pregnant Patients Increases in Idaho, U.S. Supreme Court Abortion Case Starts, Boise St. Pub. Radio (Apr. 24, 2024), https://www.boisestatepublicradio.org/health/2024-04-24/moyle-idaho-supreme-court-airlift-abortion-emergency [https://perma.cc/E6AQ-JLJ2].

[142]. Id.

[143]. Id.

[144]. SeeThis Is How Much Air Medical Transport Costs,ABA Ins., https://www.abainsurance.com/resource-center/education-center/this-is-how-much-air-medical-transport-costs/ [https://perma.cc/VUU5-RFVL] (“[T]he average air ambulance cost for a 52 mile trip falls somewhere between $12,000 and $25,000 per flight which can reach as high as $6 million depending on the medical equipment and maintenance. . . . A study conducted by the Montana Legislature shows that air ambulance costs are generally divided into two main parts: the liftoff fees and per-mile charges. Now, while the former ranges between $8,500 to $15,200, the latter can be anywhere from $26 to $133 per mile.”). With these averages, a 300-mile trip from one hospital to another could easily run upwards of $50,000.

[145]. Payment of membership costs between $60 and $85 per year and private insurance is required to qualify. Previously, these policies were recommended to people who recreate outdoors in remote areas or who ride motorcycles, but now pregnancy has been added to the list of statuses and activities with additional recommendations for caution and airlift access. As of April 2024, one company has already seen an increase in membership requests. See Kelcey Mosley-Morris, Loss of Federal Protection in Idaho Spurs Pregnant Patients to Plan for Emergency Air Transport, Idaho Cap. Sun (Apr. 23, 2024),  https://idahocapitalsun.com/2024/04/23/loss-of-federal-protection-in-idaho-spurs-pregnant-patients-to-plan-for-emergency-air-transport/ [https://perma.cc/6R3K-VVLX].

[146]. Id.

[147]. Id.

[148]. Complaint at 1, Farmer v. Univ. of Kan. Health Sys., No. PA1594-23 (Kan. Hum. Rts. Comm’n Dec. 28, 2022).

[149]. Administrative Complaint ¶¶ 20, 29, 37–39, Farmer v. Freeman Health Sys. (U.S. Dep’t of Health & Hum. Servs. Nov. 8, 2022), https://nwlc.org/wp-content/uploads/2022/11/2022.11.08-Mylissa-Farmer-EMTALA-complaint.pdf [https://perma.cc/D3ZY-TQTR].

   [150]. Complaint of Discrimination at 1, Farmer v. Freeman Hosp. W. (Miss. Comm’n on Hum. Rts. Dec. 19, 2022), https://nwlc.org/wp-content/uploads/2022/11/Missouri-Commission-on-Human-Rights-Complaint-Against-Freeman-Hospital-West-2.pdf [https://perma.cc/R9B5-C6ES].

[151]. Id. at 2.

[152]. Id.

[153]. Complaint, supra note 148, at 2.

[154]. Id.

[155]. Id.

[156]. Id.

[157]. Id.

   [158]. Anna Spoerre, ‘Care Delayed and Care Denied’: Doctor Recalls 30 Months Under Missouri Abortion Ban,Mo. Indep.(Dec. 2, 2024), https://missouriindependent.com/2024/12/02/dr-betsy-wickstrom-ob-abortion-ban-missouri-amendment-3/ [https://perma.cc/VCP2-KHVT].

[159]. Id.

[160]. Id.

[161]. Id.

[162]. Id.

[163]. Id.

[164]. See Claire Wilkinson, Abortion Ruling Complicates Med Mal Insurance Environment, Bus. Ins. (Feb. 7, 2023), https://www.businessinsurance.com/abortion-ruling-complicates-med-mal-insurance-environment/ [https://perma.cc/V8LC-75ME] (“Any medical professional who interacts with pregnant mothers is potentially exposed, said Eric J. Gardzina, Nashville, Tennessee-based senior vice president, risk management, at Ob Hospitalist Group, which employs more than 1,300 obstetrician-gynecologists in 37 states under 250 hospital contracts. OB-GYNS, emergency department physicians and pharmacists are clearly at risk, but other medical professionals such as technicians, in vitro fertilization providers, oncologists, facilitators and vendors could also be exposed, he said. . . . Ob Hospitalist Group decided to defend its employees through the process, with ‘corporate dollars or whatever it takes,’ he said.”).

[165]. “Physicians [quoted in a 2024 Senate Finance Committee report] described hospital lawyers who ‘refused to meet’ with them for months, were ‘pretty much impossible’ to reach during ‘life or death’ scenarios and offered little help beyond ‘regurgitating’ the law . . . . Doctors described how other doctors gave out wrong and potentially harmful information, saying that patients could not legally choose their own course of treatment and that doctors could not legally treat ectopic pregnancies, potentially fatal complications in which an embryo develops outside the uterine cavity.” Kavitha Surana, Report: Hospitals Rarely Advise Doctors on How to Treat Patients Under Abortion Bans, ProPublica (Dec. 19, 2024), https://www.propublica.org/article/abortion-ban-deaths-report-ron-wyden [https://perma.cc/LDG9-SRCC]; see also Staff of S. Fin. Comm., 118th Cong., Practicing Amid “a Minefield”: Emergency Reproductive Health Care Post-Dobbs 13–16 (2024).

   [166]. Staff of S. Fin. Comm., supra note 165, at 15.

   [167]. Surana, supra note 106.

[168]. Id.

[169]. Id.

[170]. Id.

[171]. Id.

[172]. Id.

[173]. Id.

[174]. Id. When maternal-fetal medicine specialist Dr. Sarah Osmundson wrote to her colleagues on the abortion approval committee on behalf of a woman who was fourteen weeks pregnant and whose fetus was developing without a skull, her colleagues “urged her to consider the optics” of providing an abortion and replied that they were not “brave enough.” Id. The fetus’s condition put the patient at increased risk for “severe buildup of amniotic fluid, which could cause her uterus to rupture and possibly kill her.” Id.

[175]. Id.

[176]. Id.

[177]. See generally Staff of S. Fin. Comm., supra note 165.

[178]. De Vos et al., supra note 103, at 13 (“At the start of every call, the callers asked hospital staff, ‘What are your hospital’s procedures if I were to face a medical emergency while pregnant that jeopardizes my life?’”).

[179]. Id. at 12; see also Simmons-Duffin, supra note 131.

[180]. De Vos et al., supra note 103, at 12.

[181]. Id. at 13–16.

[182]. Henna K. Pithia, Patient Dumping: The Cobra that Never Struck, 24S. Cal. Rev. L. & Soc. Just. 109, 110, 116, 119 (2014).

[183]. Understanding EMTALA, Am. Coll. Emergency Physicians, https://www.acep.org/life-as-a-physician/ethics--legal/emtala/emtala-fact-sheet [https://perma.cc/YN7E-ZX28].

[184]. 144 S. Ct. 2015, 2016–17 (2024).

[185]. Kitchener & Diamond, supra note 58 (“EMTALA is an imperfect tool for the post-Roe landscape, several government officials and abortion rights advocates said, in part because of the narrowness of the law. ‘If you were starting from scratch on protecting abortion rights in this country, you’d never build [the strategy] around EMTALA,’ said an administration official who spoke on the condition of anonymity because of litigation around the Biden administration’s abortion guidance. ‘That we’re here . . . is a testament to the failings of Congress and the realities of the courts.’”).

[186]. NWLC Applauds CMS’ Action on Mylissa Farmer’s Emergency Abortion Complaint, Finding Hospitals Violated Federal Law, Nat’l Women’s L. Ctr. (May 1, 2023), https://nwlc.org/press-release/nwlc-applauds-cms-action-on-mylissa-farmers-emergency-abortion-complaint-finding-hospitals-violated-federal-law/ [https://perma.cc/PBF7-XZ89]; Erica Cerutti, OU Health Did Not Violate EMTALA in Abortion Case: HHS,Becker’s Hosp. Rev. (Jan. 22, 2024), https://www.beckershospitalreview.com/legal-regulatory-issues/ou-health-did-not-violate-emtala-in-abortion-case-hhs.html [https://perma.cc/YK9B-2FYY].

[187]. NWLC Applauds CMS’ Action on Mylissa Farmer’s Emergency Abortion Complaint, Finding Hospitals Violated Federal Law, supra note 187.

[188].Press Release, U.S. Dep’t Health & Hum. Servs., Robert F. Kennedy, Jr. Sworn in as 26th Secretary at HHS, President Trump Signs Executive Order to Make America Healthy Again (Feb. 13, 2025), https://www.hhs.gov/about/news/2025/02/13/robert-kennedy-jr-sworn-26th-secretary-hhs-president-trump-signs-executive-order-make-america-healthy-again.html [https://perma.cc/A5GZ-YTUN].

[189]. The Emergency Medical Treatment and Labor Act (EMTALA), U.S. Dep’t Health & Hum. Servs.: Off. of Inspector Gen. (Sep. 11, 2024), https://oig.hhs.gov/reports/featured/emtala/ [https://perma.cc/VMJ9-PFHJ].

[190]. SeeCMS Rescinds Biden-era Guidance on EMTALA, Ctr. for Repro. Rts.(June 3, 2025), https://reproductiverights.org/news/cms-rescinds-biden-era-guidance-on-emtala/ [https://perma.cc/BQ8X-ATFP] (detailing CMS’ rescinding of Biden-era guidance documents on EMTALA because the prior guidance does not ‘reflect the policy’ of the Trump administration); see alsoTimeline of Trump’s Attacks on Our Rights, Planned Parenthood Votes,https://www.plannedparenthoodaction.org/electoral/trump-timeline-of-attacks [https://perma.cc/6QJ8-KKUT] (chronicling President Trump’s use of administrative agencies to hamper access to abortion during his first term).

[191]. See Press Release, ACLU, ACLU Statement on DOJ Abandoning Fight to Protect Emergency Abortion Care for Pregnant Patients (Mar. 4, 2025),https://www.aclu.org/press-releases/aclu-statement-on-doj-abandoning-fight-to-protect-emergency-abortion-care-for-pregnant-patients [https://perma.cc/9QLF-SVLY].

[192]. See Press Release, Catherine Cortez Masto, Sen. for Nev., At Confirmation Hearing, Cortez Masto Spars with RFK Jr. on Commitment to Protecting Abortion Access, Lowering Drug Prices(Jan. 29, 2025), https://www.cortezmasto.senate.gov/news/press-releases/at-confirmation-hearing-cortez-masto-spars-with-rfk-jr-on-commitment-to-protecting-abortion-access-lowering-drug-prices/ [https://perma.cc/4KXD-DBJR] (“Senator Cortez Masto asked Mr. Kennedy to acknowledge that a woman having a heart-attack had the right, under a 40-year old federal law, to be given emergency care in hospitals that receive Medicare payments. Mr. Kennedy agreed that she did. Then, Cortez Masto asked ‘A pregnant woman with life-threatening bleeding from an incomplete miscarriage goes to the ER, and her doctor determines that she needs an emergency abortion. But, she’s in a state where abortion is banned. You would agree also . . . that federal law protects her right to that emergency care, correct?’ ‘Uh . . . I don’t know,’ Mr. Kennedy responded.”). When Senator Cortez Masto pressed Mr. Kennedy about his authority to enforce EMTALA, he also demonstrated a glaring lack of understanding of his enforcement power of EMTALA as secretary of HHS. SeePressed by Lawmakers, R.F.K. Jr. Fumbles Details of Key Health Programs, N.Y. Times (May 5, 2025),https://www.nytimes.com/live/2025/01/29/us/rfk-jr-health-senate-hearing (on file with the California Law Review).

[193]. See Bono, Wermuth & Hipskind, supra note 73, at 1.

[194]. Harrison Complaint, supra note 63, at ¶¶ 131–38. This claim is made to the best of the author’s knowledge and research in this area at the time of writing.

[195]. Intentional Infliction of Emotional Distress, Corn. L. Sch.: Legal Info. Inst., https://www.law.cornell.edu/wex/intentional_infliction_of_emotional_distress [https://perma.cc/V6QX-H94W]; NIED, Corn. L. Sch.: Legal Info. Inst., https://www.law.cornell.edu/wex/nied [https://perma.cc/AP63-EZCF].

[196]. Intentional Infliction of Emotional Distress, supra note 195.

[197]. NIED, supra note 195.

[198]. Id.

[199]. See e.g.,Belluck, supra note 130 (arguing that Jaci Statton’s experience of almost passing out in her kitchen and realizing that her pants were soaked with blood yet being told that she should wait in the hospital parking lot until her conditioned worsened enough to be treated, by which point she was “crashing in front of [hospital staff],” presents a strong case for an IIED or NIED claim).

[200]. Roe Complaint, supra note 66, ¶¶ 107–21; Harrison Complaint, supra note 63, ¶¶ 111–30; Nusslock Complaint, supra note 66, ¶¶ 83–98.

[201]. Harrison Complaint, supra note 63, ¶¶ 1–8.

[202]. Id. ¶¶ 42–52.

[203]. Wrongful Death, Corn. L. Sch.: Legal Info. Inst., https://www.law.cornell.edu/wex/wrongful_death [https://perma.cc/6UV9-ZYV6].

[204]. Stephania Taladrid, Did an Abortion Ban Cost a Young Texas Woman Her Life?, New Yorker (Jan. 8, 2024), https://www.newyorker.com/magazine/2024/01/15/abortion-high-risk-pregnancy-yeni-glick [https://perma.cc/L8Y7-A9NQ].

[205]. Id.

[206]. Id.

[207]. Id.

[208]. Id.

[209]. Id.

[210]. Id.

[211]. See Tex. Civ. Prac. & Rem. Code Ann. § 71.002(c)(2).

[212]. See id.

[213]. See generally Wilson Elser Moskowitz Edelman & Dicker LLP, Wrongful Death Claims: 2023 50-State Comparative Law Review (2023), https://www.wilsonelser.com/publications/wrongful-death-claims-a-50-state-comparative-law-review-2023 [https://perma.cc/S3ET-VGPP] (surveying the variance in requirements and limitations for wrongful death claims).

[214]. Id.

[215]. Lawsuit Says a Black Patient Bled to Death Because of a Hospital’s Culture of Racism, NPR (May 5, 2022), https://www.npr.org/2022/05/05/1096833756/racism-lawsuit-cedars-sinai-medical-center-wife-death [https://perma.cc/CN4P-GVX7].

[216]. Id.

[217]. Id.

[218]. Id.

[219]. Deena Zaru & Brittany Gaddy, Cedars-Sinai Medical Center Facing Federal Probe Over Treatment of Black Mothers, ABC News (July 12, 2023), https://abcnews.go.com/US/cedars-sinai-medical-center-facing-federal-probe-treatment/story?id=101165260 [https://perma.cc/N82T-RMPS]; Family of Black Woman Who Died After ‘Sloppy’ C-section Sues Hospital for Racism,Today (May 9, 2022), https://www.today.com/parents/parents/black-woman-died-c-section-racism-lawsuit-cedars-sinai-rcna28029 [https://perma.cc/AKT3-TX4Y]; Governor Newsom Signs Legislation to Modernize California’s Medical Malpractice System, Governor Gavin Newsom (May 23, 2022), https://www.gov.ca.gov/2022/05/23/governor-newsom-signs-legislation-to-modernize-californias-medical-malpractice-system/ [https://perma.cc/WL52-77KY].

[220]. See Zaru & Gaddy, supra note 219.

[221]. Morning Edition, Insurance Refused to Pay for Her Abortion, Even When Her Life Was at Stake, NPR (Aug. 26, 2024), https://www.npr.org/sections/shots-health-news/2024/08/26/nx-s1-5068276/abortion-ban-exception-health-insurance [https://perma.cc/6R5E-BJ3A].

[222]. Jennifer Arlen & W. Bentley MacLeod, Malpractice Liability for Physicians and Managed Care Organizations, 78 N.Y.U. L. Rev. 1929, 1932 (2003).

[223]. Managed Care, CDC: Nat’l Ctr. for Health Stat. (Aug. 12, 2022), https://www.cdc.gov/nchs/hus/sources-definitions/managed-care.htm [https://perma.cc/82ZY-A8V4].

[224]. Managed Care Liability Insurance, IRMI, https://www.irmi.com/term/insurance-definitions/managed-care-liability-insurance [https://perma.cc/3AET-PW8H]. PPO plans are the most common type of health plan in group health insurance that employers offer, with 47 percent of covered workers enrolled in PPOs and 13 percent of covered workers enrolled in HMOs in 2023. 2023 Employer Health Benefits Survey, Kaiser Fam. Found. (Oct. 18, 2023), https://www.kff.org/report-section/ehbs-2023-section-5-market-shares-of-health-plans/#figure51 [https://perma.cc/XWV8-S5G5].

[225]. Arlen & MacLeod, supra note 222, at 1942, 1944.

[226]. See, e.g., Craig C. New & Chris Dominic, Us and Them: A Comparison of Juror Attitudes in Oregon and the Northwest, Or. state barhttps://www.osbar.org/publications/bulletin/03dec/jurors.html[https://perma.cc/2FHX-6JRS] (“Respondents were asked which side they would favor if a person was suing a corporation. To this question, 60 percent of the respondents reported favoring the plaintiff, 24 percent favored neither party and 16 percent favored the defendant.”).

[227]. See, e.g.,Helen Santoro, Health Insurers’ $371 Billion Windfall, Lever (Dec. 11, 2024), https://www.levernews.com/health-insurers-371-billion-windfall/ [https://perma.cc/3CLL-XULQ].

[228]. See, e.g., Patient Protections in Managed Care: Hearing Before the Subcomm. on Health of the H. Comm. on Ways and Means, 107th Cong. 20 (2001) (“The only noneconomic damage cap in Texas applies in statutorily created medical malpractice actions for wrongful death. That cap is adjusted for inflation and the 2000 cap amount is $1,410,000. This cap does not apply to a cause of action against a managed care insurer.”).

[229]. See generally Arthur F. Southwick, Vicarious Liability of Hospitals, 44 Marq. L. Rev. 153 (1960); see also Bolton v. Willis-Knighton Med. Ctr., 116 So. 3d 76, 83–84 (La. Ct. App. 2013) (“It is well settled that a hospital is liable for its employee’s negligence, including its doctors and nurses, under the respondeat superior doctrine. In a medical malpractice claim against a hospital, the plaintiff is required to prove by a preponderance of the evidence, as in any negligence action, that the defendant owed the plaintiff a duty to protect against the risk involved (or the applicable standard of care), and the injury was caused by the breach. Whether an emergency room physician is an employee or an independent contractor is a factual issue turning on the control exercised by the hospital over his activities. The distinction between employee and independent contractor status is a factual determination to be decided on a case-by-case basis.” (citations omitted)).

[230]. See Magallanes v. Doctors Med. Ctr. of Modesto,295 Cal. Rptr. 3d 828, 830, 834–35 (Ct. App. 2022) (holding that, because the patient did not rely on an apparent agency relationship between the hospital and the physician to receive care, the hospital was not liable for medical negligence).

[231]. A. Shenoy, G.N. Shenoy & G.G. Shenoy, Respondeat Superior in Medicine and Public Health Practice: The Question Is – Who Is Accountable for Whom?, 17 Ethics Med. & Pub. Health 1, 4 n.17 (2021).

[232]. See, e.g., Simmons-Duffin, Her Miscarriage Left Her Bleeding Profusely, supra note 2.

[233]. Nancy R. Levin, Hospital’s Liability for Independent Emergency Room Service, 22 Santa Clara L. Rev. 791, 794 (1982).

[234]. Id. at 795.

[235]. Id. at 793.

[236]. Id. at 795.

[237]. Id. at 799.

[238]. See Joseph Wood, Key Contract Issues for Emergency Physicians, Am. Acad. of Emergency Med. RSA, https://www.aaemrsa.org/education/residents/key-contract-issues [https://perma.cc/LP3Q-PYVM].

[239]. See generally Mitchell J. Nathanson, Hospital Corporate Negligence: Enforcing the Hospital’s Role of Administrator, 28 Tort & Ins. L.J. 575, 578 (1993);Erika L. Amarante, Recent Trends and Defense Strategies: Corporate Liability for Hospitals, 2016 For the Defense 8.

[240]. Amarante, supra note 239, at 9–10.

[241]. See Nathanson, supra note 239, at 578; 211 N.E.2d 253 (Ill. 1965).

[242]. Nathanson, supra note 239, at 578; see alsoDarling, 211 N.E.2d at 257 (“Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes, as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of ‘hospital facilities’ expects that the hospital will attempt to cure him, not that its nurses or other employes will act on their own responsibility.” (citation omitted)).

[243]. Nathanson, supra note 239, at 579.

[244]. Id. at 576 n.2. (“Prior to the abolishment of charitable immunity, many courts rationalized their reluctance to pin liability on hospitals in part on the notion that they were not health care providers at all. Rather, they were considered merely buildings that provided the equipment and facilities necessary to allow physicians to practice.”).

[245]. Est. of Essex v. Grant Cnty. Pub. Hosp. Dist. No. 1, 546 P.3d 407, 411 (Wash. 2024) (quoting Adamski v. Tacoma Gen. Hosp., 579 P.2d 970, 974 (1978)).

[246]. Id.

[247]. Id.

[248]. Nathanson, supra note 239, at 575.

[249]. Gary F. Loveridge & Betsy S. Kimball, Hospital Corporate Negligence Comes to California: Questions in the Wake of Elam v. College Park Hospital, 14 Pac. L.J. 803, 809 n.47 (1983).

[250]. Gafner v. Down E. Cmty. Hosp., 735 A.2d 969, 979–80 (Me. 1999).

[251]. See Pedroza v. Bryant, 677 P.2d 166, 172 (Wash. 1984); see also David B. Robbins, Cara Wallace, Malori Basye, Juliana Lehua Bennington & Adrianna Simonelli, Expansion of Hospital Tort Liability in Washington, Perkins Coie (Apr. 18, 2024), https://perkinscoie.com/insights/update/expansion-hospital-tort-liability-washington [https://perma.cc/B6WB-KLPG].

[252]. 546 P.3d 407, 411 (Wash. 2024).

[253]. Id. at 414.

[254]. Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991)

[255]. See Surana, supra note 165.

[256]. Id. (quoting Staff of S. Fin. Comm., supra note 165, at 2).

[257].Surana, supra note 165(“[M]any of the hospitals were relying on guidance created before the existence of abortion bans, the report said. In most cases, physicians were given basic EMTALA guidance that didn’t discuss how to handle new abortion restrictions and were told to contact legal or ethics counsel for questions. Only a few hospitals had created proactive guidance to help their providers navigate the new landscape, and only two of those explicitly discussed conflicts that exist between abortion bans and EMTALA and how to handle them. It was not always clear if these directives were created before media reports of denied care.”).

[258]. See generally 328 S.W.3d 829 (Tenn. 2010) (holding that hospital was liable for failing to follow its internal policy requiring all emergency room patients to be seen by a physician, as a result of patient’s death from cardiac infection following discharge with a diagnosis of a sprain). See also Amarante, supra note 239, at 3.

[259]. Barkes, 328 S.W.3d at 830.

[260]. Id. at 831.

[261]. Id.

[262]. Id. at 832.

[263]. Id.

[264]. Id. at 835.

[265]. Id.

[266]. Id. at 836.

[267]. Thompson v. Nason Hosp., 591 A.2d 703, 708 (Pa. 1991).

[268]. See generally Upjohn Co. v. United States, 449 U.S. 383 (1981) (expanding the availability of attorney-client privilege in the corporate context beyond merely those who play a substantial role in deciding and directing a corporation’s legal response).

[269]. See generally Arnold S. Relman, The New Medical-Industrial Complex,303 NEJM 963 (1980).

[270]. See generally id.; see also Steffie Woolhandler, David U. Himmelstein, Adam W. Gaffney & Danny McCormick, Opinion, The U.S. Experiment with Profit-Driven Health Care Has Failed, STAT (Oct. 21, 2025), https://www.statnews.com/2025/10/21/health-care-system-profit-failed/ [https://perma.cc/4DXL-NHPZ].

[271]. See Maya Brownstein, Private Equity’s Appetite for Hospitals May Put Patients at Risk, Harv. Sch. of Pub. Health (Dec. 16, 2024), https://hsph.harvard.edu/news/private-equitys-appetite-for-hospitals-may-put-patients-at-risk/ [https://perma.cc/6Q3M-LCVY].

[272]. See supra Part I.C.

[273]. See Alan Condon, 65 Health Systems Ranked by Annual Revenue, Becker’s Hosp. Rev. (May 16, 2025), https://www.beckershospitalreview.com/finance/38-health-systems-ranked-by-annual-revenue/ [https://perma.cc/R6YR-65BD] (listing health systems by their annual revenue, between $115.8 billion and $737 million); see also Jeremia Kimelman, A Record Amount Went to Lobbying California’s Government. Who Were the Biggest Spenders?, Cal Matters (Feb. 12, 2024), https://calmatters.org/politics/2024/02/california-lobbying-state-government/ [https://perma.cc/NN55-9LTG] (showing that the California Hospital Association, a trade group representing over 400 hospitals and healthcare systems, spent over $3.5 million on lobbying in 2023).

[274]. See, e.g.,Mike Dennison, Hospitals’ Lobbying Frustrates Montana Lawmakers Who Sought to Boost Oversight, KFF Health News (Apr. 23, 2025), https://kffhealthnews.org/news/article/hospital-lobbying-montana-state-legislators-medicaid-expansion-oversight-community-benefit/ [https://perma.cc/78CG-HZTK].

[275]. See generally Gary T. Dance, Medical Malpractice: Prelitigation Screening Panels in Idaho, 19 Idaho L. Rev. 31 (1983).

[276].Idaho Div. Occupational & Pro. Licenses, Medical Malpractice Prelitigation Claim Form1, https://apps-dopl.idaho.gov/IBOMPortal/LINKS/prelitigation/prelit_form.pdf [https://perma.cc/G6HF-4WQX].

[277]. Id.

[278].Idaho Div. Occupational & Pro. Licenses, We’re Searching for Volunteers, https://apps-dopl.idaho.gov/IBOMPortal/LINKS/prelitigation/volunteers_wanted.pdf [https://perma.cc/5VVD-6R3V].

[279]. Idaho Medical Malpractice Laws, Gilman & Bedigian, LLC, https://www.gilmanbedigian.com/idaho-medical-malpractice-laws/ [https://perma.cc/GYC8-RM6C].

[280]. Id.

[281]. Id.; Idaho Div. Occupational & Pro. Licenses, supra note 276.

[282]. Idaho Medical Malpractice Laws, supra note 279.

[283]. Id.

[284]. Prelitigation: General Information, Utah Com.: Div. of Pro. Licensing, https://dopl.utah.gov/prelitigation/general-information/ [https://perma.cc/2D5K-H8AG].

[285].Nat’l Ass’n of Benefits & Ins. Pros., Malpractice Damage Caps by State, https://nabip.org/media/8331/medical_malpractice_cap.pdf [https://perma.cc/Q29D-M49Z].

[286]. Harrison Complaint, supra note 63, ¶ 15.

[287]. Id.

[288]. James Staas, Former Tonawanda Dispatcher Awarded $9.1 Million in Medical Malpractice Suit, Buffalo News (Feb. 17, 2014), https://buffalonews.com/news/article_3892fb83-1c50-5876-8ae7-f32723e7d7e6.html [https://perma.cc/J9FK-246M].

[289]. See generally Erie R. Co. v. Tompkins, 304U.S. 64 (1938). In January 2026, the Supreme Court decided Berk v. Choy, which discusses state-level medical malpractice requirements and choice-of-law questions. 146 S. Ct. 546 (2026). However, because substantive edits to this Note were completed in October 2025, this Note does not explore the impact of this decision.

[290]. See, e.g., Thompson v. Nason Hosp., 591 A.2d 703, 707 (Pa. 1991).

[291]. Donna Vanderpool, The Standard of Care, Innov. in Clin. Neurosci., Summer (July–Sep.) 2021, at 50, 51.

[292]. Brian K. Cooke, Elizabeth Worsham & Gary M. Reisfield, The Elusive Standard of Care, 45 J. Am. Acad. Psychiatry & L. 358, 359 (2017).

[293]. Id. at 359–60.

[294]. Id. at 361.

[295]. Id.

[296]. Id.

[297]. Id.

[298]. “The reproductive rights framework is largely centered on achieving women’s individualistic reproductive freedom through the legal system and has historically focused largely on the pro-choice and pro-life debate, sex education, and family planning.” Danielle M. Pacia, Reproductive Rights vs. Reproductive Justice: Why the Difference Matters in Bioethics, The Petrie-Flom Ctr.: Bill of Health (Nov. 3, 2020), https://blog.petrieflom.law.harvard.edu/2020/11/03/reproductive-rights-justice-bioethics/ [https://perma.cc/66NH-2D2S].

[299]. “SisterSong defines Reproductive Justice as the human right to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities.” Reproductive Justice, SisterSong, https://www.sistersong.net/reproductive-justice [https://perma.cc/Z2HR-YRL9].

[300]. See Saul Elbein, Texas AG’s Office Argues Women Should Sue Doctors – Not State – Over Lack of Abortion Access, Hill (Nov. 28, 2023), https://thehill.com/policy/healthcare/4331412-texas-ags-office-argues-women-should-sue-doctors-not-state-over-lack-of-abortion-access/ [https://perma.cc/F5QN-C97D].

[301]. See Carmel Shachar, Susannah Baruch & Louise P. King, Opinion, Whose Responsibility Is It to Define Exceptions in Abortion Bans?, 331 JAMA 559, 559 (2024).

[302]. The Charlotte Lozier Institute is the nonprofit science and research arm of the Susan B. Anthony Pro-Life America Group, one of America’s most powerful anti-abortion organizations. It has been criticized for producing junk science that is designed to be used in anti-abortion litigation—several of its studies have been retracted by leading science journals. The retractions came due to uncleared conflicts of interest involving several of the papers’ authors, some of whom are plaintiffs or expert witnesses in a case questioning the Food and Drug Administration’s approval of mifepristone, one of the most commonly used medications in medication abortion worldwide. See Sofia Resnick, Retracted Studies the Latest in a Decadeslong Abortion-Science Fight,Colo. Newsline (Feb. 25, 2024), https://coloradonewsline.com/2024/02/25/retracted-studies-abortion-science-fight/ [https://perma.cc/X8NE-V8SW]. Researchers from the Charlotte Lozier Institute have also testified in support of criminal abortion bans in states like Kansas, arguing that felony crimes for abortion “would provide important protections for pregnant women in Kansas.” Sherman Smith, Kansas Abortion ‘Coercion’ Bill Touted by Out-of-State Think Tank That Produced Retracted Research, Kan. Reflector (Mar. 19, 2024) (citation omitted), https://kansasreflector.com/2024/03/19/kansas-abortion-coercion-bill-touted-by-out-of-state-think-tank-that-produced-retracted-research/ [https://perma.cc/GV4M-54NW].

   [303]. The Alliance for Hippocratic Medicine is an organization that was hastily created in 2022 which has been described by watchdog groups as a shoddy paper cover for Alliance Defending Freedom (ADF), one of the most prominent Christian legal advocacy groups in the United States today. The Alliance for Hippocratic Medicine was the lead plaintiff in a major Supreme Court mifepristone case, FDA v. Alliance for Hippocratic Medicine, 144 S. Ct. 1540 (2024). Melissa Gira Grant, Who Exactly Is Behind the Supreme Court’s Big Mifepristone Case?, New Republic (Mar. 7, 2024), https://newrepublic.com/article/179626/mifepristone-abortion-supreme-court-alliance-hippocratic-medicine [https://perma.cc/93LZ-XX44].

[304]. See Brief for Amici Curiae Charlotte Lozier Institute and Alliance for Hippocratic Medicine Supporting Appellants at 1–2, State v. Zurawski, 690 S.W.3d 644 (Tex. 2024) (No. 23-0629).

[305]. Id.

[306]. Id. at 2.

[307]. Eleanor Klibanoff, Kate Cox’s Case Reveals How Far Texas Intends to Go to Enforce Abortion Laws, Tex. Trib. (Dec. 13, 2023), https://www.texastribune.org/2023/12/13/texas-abortion-lawsuit/ [https://perma.cc/JBJ5-VFAM].

[308]. Kimberlee Kruesi, Asked to Clear up Abortion Bans, GOP Leaders Blame Doctors and Misinformation for the Confusion, Associated Press (Mar. 11, 2024), https://apnews.com/article/abortion-bans-exceptions-doctors-lawmakers-7cefca4a248076268c789ea05b367f1a [https://perma.cc/XHG2-NT2M].

[309]. “‘I would hate to think that St. Luke’s or any other hospital is trying to do something like this just to make a political statement, which I think is actually dangerous,’ Labrador said. In a written statement to the Statesman, St. Luke’s spokesperson Christine Myron said the hospital system stands by Souza’s statements. ‘We do not have any way of knowing who Attorney General Labrador spoke to related to out-of-state patient transfers for pregnancy complications, but what we can share with confidence is our data,’ Myron said.” Nicole Blanchard, Idaho Attorney General Labrador Questions Doctors’ Accounts of Abortion Emergencies, Idaho Statesman (Apr. 25, 2024), https://www.idahostatesman.com/news/politics-government/state-politics/article287981125.html [https://perma.cc/7RQT-9ZKT].

[310]. See Shachar, Baruch & King, supra note 301, at 560.

[311]. See Kimelman, supra note 273 (showing that the California Hospital Association, a trade group representing over 400 hospitals and healthcare systems, spent over $3.5 on million on lobbying in 2023).

[312].City of Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416, 427 (1983) (“The Court also has recognized, because abortion is a medical procedure, that the full vindication of the woman’s fundamental right necessarily requires that her physician be given ‘the room he needs to make his best medical judgment.’ The physician’s exercise of this medical judgment encompasses both assisting the woman in the decisionmaking process and implementing her decision should she choose abortion.” (citations omitted)), overruled by Planned Parenthood of Se. Pa. v. Casey,503 U.S. 833 (1992); Colautti v. Franklin, 439 U.S. 379, 387 (1979) (“Roe stressed repeatedly the central role of the physician, both in consulting with the woman about whether or not to have an abortion, and in determining how any abortion was to be carried out.”), abrogated by Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022); Doe v. Bolton, 410 U.S. 179, 192 (1973) (“Whether, in the words of the Georgia statute, ‘an abortion is necessary’ is a professional judgment that the Georgia physician will be called upon to make routinely. We agree with the District Court that the medical judgment may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment. And it is room that operates for the benefit, not the disadvantage, of the pregnant woman.” (citation omitted)), abrogated byDobbs, 142 S. Ct. 2228;United States v. Vuitch,402 U.S. 62, 72 (1971) (“[W]hether a particular operation is necessary for a patient’s physical or mental health is a judgment that physicians are obviously called upon to make routinely whenever surgery is considered.”).

[313]. See, e.g., Casey, 505 U.S. at 845 (noting abortion healthcare providers as parties), overruled byDobbs, 142 S. Ct. 2228; Rust v. Sullivan, 500 U.S. 173, 181(1991) (doctor was a plaintiff); Hodgson v. Minnesota, 497 U.S. 417, 429 (1990) (two doctors and four clinics among plaintiffs); Webster v. Reprod. Health Servs., 492 U.S. 490, 501–02 (1989) (five state-employed health professionals and two private nonprofit corporations providing abortion services); Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 752 (1986), overruled byCasey, 505 U.S. 833; Harris v. McRae, 448 U.S. 297, 302(1980) (hospital was a plaintiff); Bellotti v. Baird, 443 U.S. 622, 626 (1979) (doctor was a plaintiff); Singleton v. Wulff, 428 U.S. 106, 109 (1976) (two physician plaintiffs); see also Roe v. Wade, 410 U.S. 113, 120 (1973) (noting that James Hubert Hallford, a licensed physician, was an intervenor inRoe’s action, alleging he had been arrested for violating Texas’s abortion statutes), overruled byDobbs, 142 S. Ct. 2228.

[314]. Plaintiffs’ Original Petition for Declaratory Judgment and Application for Permanent Injunction, supra note 4, ¶¶ 327–34.

[315]. See generally David A. Grimes, Jacqueline D. Forrest, Alice L. Kirkman & Barbara Radford, Clinical Opinion, An Epidemic of Antiabortion Violence in the United States, 165 Am. J. Obstet. & Gynec. 1263 (1991). See alsoThe Murder of Barnett Slepian: 25 Years Later, Buffalo News (Oct. 23, 2023), https://buffalonews.com/news/local/the-murder-of-barnett-slepian-25-years-later/collection_7fffe252-7018-11ee-974a-ff166aeeb020.html [https://perma.cc/2YA9-SKEX] (collecting news articles regarding the murder of an abortion provider). For more recent accounts of violence, see Christine Hauser, California Man Gets 9 Years in Firebombing of Planned Parenthood Clinic,N.Y. Times (Apr. 16, 2024), https://www.nytimes.com/2024/04/16/us/planned-parenthood-firebomber-sentenced.html [https://perma.cc/G4JW-7NJX].

[316]. Roe, 410 U.S. at 165–66; C.E. Joffe, T.A. Weitz & C.L. Stacey, Uneasy Allies: Pro-Choice Physicians, Feminist Health Activists and the Struggle for Abortion Rights, 26 Socio. Health & Illness 775, 781 (2004) (citing Roe, 410 U.S. at 166).

[317]. See Emma Peterson & Daniel Martinez Hosang, How Doctors Came to Play a Key Role in the Abortion Debate,TIME (June 20, 2024), https://time.com/6989501/physician-abortion-access/ [https://perma.cc/K5AL-YSDG].

[318]. See supra Part I.C.

[319].Joffe, Weitz & Stacey, supra note 316, at 776–77.

[320]. Id. at 777.

[321]. Id.

[322]. Id. at 778.

[323]. About Us, AAPLOG, https://aaplog.org/about-us/ [https://perma.cc/5DH7-KVWX]; Pro-Life Directory, AAPLOG, https://aaplog.org/pro-life-directory/ [https://perma.cc/BV8M-Y59R].

[324]. About Us, supra note 323; What are Crisis Pregnancy Centers?, Planned Parenthood (Nov. 4, 2021), https://www.plannedparenthood.org/blog/what-are-crisis-pregnancy-centers [https://perma.cc/6L9S-RTNZ].

[325]. See generallyAbout Us, supra note 323. See also Bracey Harris, Meet the Anti-Abortion Group Using White Coats and Research to Advance its Cause, NBC NEWS (June 7, 2024), https://www.nbcnews.com/news/us-news/charlotte-lozier-institute-anti-abortion-research-influence-rcna151277 [https://perma.cc/LGR6-KLDY].

[326]. Coleman Drake, Marian Jarlenski, Yuehan Zhang & Daniel Polsky, Market Share of US Catholic Hospitals and Associated Geographic Network Access to Reproductive Health Services, 3 JAMA Network Open 1 (2020), https://pmc.ncbi.nlm.nih.gov/articles/PMC6991305/ [https://perma.cc/WG3U-FDAK].

[327]. Joffe, Weitz & Stacey, supra note 316, at 778.

[328]. See Harrison Complaint, supra note 63, ¶¶ 9, 37; Roe Complaint, supra note 66, ¶ 22.

[329]. See Joffe, Weitz & Stacey, supra note 316, at 780.

[330]. See Stephania Taladrid, The Post-Roe Abortion Underground, New Yorker (Oct. 10, 2022), https://www.newyorker.com/magazine/2022/10/17/the-post-roe-abortion-underground [https://perma.cc/L4XG-SPQB].

[331]. Joffe, Weitz & Stacey, supra note 316, at 780 (citing 2 Robert E. Hall, Abortion in a Changing World 109 (1970)).

[332]. See Avik Roy, How the Hospital Lobby Fights Against Affordable Health Care, Found. for Rsch. on Equal Opportunity, https://freopp.org/whitepapers/how-the-hospital-lobby-fights-against-affordable-health-care/ [https://perma.cc/5TR7-X9N4]; Kimelman, supra note 273.

[333].Am. Hosp. Ass’n, Federal Agencies with Regulatory or Oversight Authority Impacting Hospitals (2017), https://www.aha.org/system/files/2018-01/info-regulatory-burden-federal-agencies.pdf [https://perma.cc/LB96-VFLA].

[334]. About the AHA, Am. Hosp. Ass’n, https://www.aha.org/about [https://perma.cc/2K3C-MGAD].

[335]. See, e.g., AAMC, AHA Amicus Brief Supports U.S. Challenge to Idaho Abortion Law, AAMC (Aug. 18, 2022), https://www.aamc.org/advocacy-policy/washington-highlights/aamc-aha-amicus-brief-supports-us-challenge-idaho-abortion-law [https://perma.cc/66LJ-BMWB].