In the Wake of Dobbs, Medical Providers May Face Medical Malpractice Cases for Failing to Perform Emergency Abortions

In the Wake of Dobbs, Medical Providers May Face Medical Malpractice Cases for Failing to Perform Emergency Abortions

July 17, 2023
By Courtney Sanders

In the aftermath of the U.S. Supreme Court’s Dobbs decision overturning Roe v. Wade14 states currently have near-total abortion bans with limited exceptions. These bans ultimately place medical providers in a difficult position where they must choose between upholding their ethical obligations to provide care to their pregnant patients and following the law. 

Under these bans, medical providers who perform or attempt to perform abortions, outside of an exception, could face suspension of their medical licenses, felony charges that carry prison time, substantial fines, and/or civil litigation from the pregnant person’s family. While the bans have medical exceptions, such as providing abortions to save the pregnant person’s life, medical providers have refused and will likely continue to refuse to perform abortions when there is a medical emergency because of the difficulty in deciding which cases qualify as medical exceptions and the fear of facing these harsh penalties. [1]

Failure to perform an emergency abortion can lead to severe health concerns such as infection or hemorrhaging that require intensive care admission. As a result, medical providers may now face malpractice cases when they fail to perform an emergency abortion for pregnant people facing health-threatening complications.

Although a plaintiff may have a cause of action, there are several obstacles that may impede filing or successfully trying a medical malpractice case. These obstacles may include: lack of economic feasibility because of a state’s cap on noneconomic damages; the lack of severity of plaintiff’s physical and/or emotional injuries; potential ambiguity of a ban’s exception language; and juries being sympathetic to medical providers in light of the difficult decisions they face.

Overall, whether a plaintiff can bring a medical malpractice case will largely depend on which state law applies and that is likely to be the state in which the patient’s care took place. However, federal law may provide support for plaintiffs. Under the Emergency Medical Treatment and Labor Act (EMTALA), medical providers must treat patients in emergency situations. Recently, the Centers for Medicare & Medicaid Services found that two hospitals violated the EMTALA when they refused to provide an emergency abortion to a pregnant person.

Interpretation of the law, in light of these recent changes, is in flux. In any event, the safe care of pregnant patients is at issue.


[1] See generally Human Rights Watch, Human Rights Crisis: Abortion in the United States after Dobbs, (Apr. 18, 2023), https://www.hrw.org/sites/default/files/media_2023/04/Human%20Rights%20Crisis%20-%20Abortion%20in%20the%20United%20States%20After%20Dobbs.pdf.

 
 

Disclaimer: This publication is not intended to provide legal advice but to provide general information on legal matters. Transmission is not intended to create and receipt does not establish an attorney-client relationship. Readers should seek specific legal and/or medical advice before taking any action with respect to matters mentioned in this publication. The attorney responsible for this publication is Courtney Sanders. This post constitutes a form of attorney advertising as defined by some state bar associations.

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