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Keywords

Standard of care; abortion; abortion ban; Dobbs v. Jackson Women’s Health Organization; tort law; pregnant; pregnancy; malpractice; medical malpractice; damages; damage caps; public law; ectopic pregnancy; Roe v. Wade; Life of the Mother Act; American College of Obstetricians and Gynecologists; State v. Zurawski; corporate negligence; vicarious liability; hospital accrediting organization; obstetric care; bypass procedure; helpline; clinician

Abstract

In response to mounting evidence of the devastating harms patients have experienced under abortion bans, abortion opponents and the Supreme Court of Texas have argued that the bans are clear but that doctors are willfully refusing to provide care. Instead of reforming the bans, they argue that doctors should be sued in medical malpractice for their failure to meet the standard of care. This Article interrogates that claim, investigating whether the crisis in reproductive healthcare that has resulted from delayed and denied care can be remedied by suing doctors. Specifically, can medical malpractice litigation provide guardrails against the erosion in the provision of care in abortion ban states? For both systemic and strategic reasons, we conclude that the answer is no. The Article identifies four strategies for recalibrating the risk calculus driving the diminished quality of care currently provided to pregnant patients in ban states. Each proposal is designed to shore up the ability of clinicians to provide care consistent with evidence-based best practices by pressing hospitals, health systems and professional societies to take action to support and guide clinicians so as to maximize their ability to provide competent, ethical care within the bounds of the law.

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