The Legal Risks of Refusing Abortion Care: A Year After Roe v. Wade

Key Highlights :

1. A year after the overturning of Roe v. Wade, many physicians and hospitals in the states that have restricted abortion reportedly are refusing to end the pregnancies of women facing health-threatening complications, out of fear they might face criminal prosecution or loss of their medical license.2. When physicians decide not to provide treatments widely accepted as the standard of care because of these new laws, "that's perceived as substandard care and there is increased civil liability."3. To some physicians and malpractice attorneys, the question is when—not if—a pregnant patient will die from lack of care and set the stage for a big-dollar wrongful death claim.4. Abortion rights supporters said such a case could pressure doctors and hospitals to provide appropriate abortion care, counterbalancing their fears of running afoul of state abortion bans, many of which call for criminal prosecution and revocation of medical licenses as punishment for violations.5. "If we want to encourage proper care, there has to be some sort of counter-risk to physicians and hospitals for refusing to provide care that should be legal," said Greer Donley, an associate professor at the University of Pittsburgh School of Law who studies the impact of abortion bans.6. Supporters of abortion bans said they would welcome malpractice lawsuits.7. Providers are refusing to use the exceptions in some state laws that allow them to perform abortions to save a patient's life or health, they said.8. A new KFF poll has found that 59% of OB-GYNs practicing in states with gestational limits on abortion, and 61% of those in states with bans, are somewhat or very concerned about their legal risk when making decisions about the necessity of an abortion.9. Medical studies and news reports show that some women with pregnancy complications have suffered serious health consequences when doctors and hospitals did not provide once-routine abortion care.10. Malpractice lawsuits against providers are difficult to win, and state abortion bans could undermine the argument that abortion is the legal "standard of care."

     One year after the overturning of Roe v. Wade, many physicians and hospitals in states that have restricted abortion reportedly are refusing to end the pregnancies of women facing health-threatening complications, out of fear they might face criminal prosecution or loss of their medical license. This decision to deny abortion care could potentially lead to medical malpractice lawsuits alleging that the providers harmed patients by failing to provide timely, necessary abortion care.

     The fear of criminal prosecution and loss of medical license has been a major factor in the decision of many providers to deny abortion care. A recent poll conducted by the Kaiser Family Foundation (KFF) found that 59% of OB-GYNs practicing in states with gestational limits on abortion, and 61% of those in states with bans, are somewhat or very concerned about their legal risk when making decisions about the necessity of an abortion.

     Supporters of abortion bans have welcomed the possibility of medical malpractice lawsuits, as they believe it could help clarify that the law does not contradict standard medical practice. John Seago, president of Texas Right to Life, said, “It could help achieve our goal if it clarifies that the law did not contradict standard medical practice.”

     Attorneys are exploring lawsuits on behalf of women who they said have been harmed by a state abortion ban. One such case is that of Mylissa Farmer, a Missouri woman who was refused an abortion at two hospitals in August after her water broke about 18 weeks into her pregnancy. According to Missouri law, an exception is made for medical emergencies, yet Farmer was still denied the procedure. Her attorney is now considering a medical malpractice suit.

     Medical studies have also shown that some women with pregnancy complications have suffered serious health consequences when doctors and hospitals did not provide once-routine abortion care. A study conducted by the University of California-San Francisco identified dozens of cases in 14 states in which physicians said deficiencies in care due to abortion restrictions led to preventable complications and hospitalizations, with some patients nearly dying.

     Though medical malpractice cases are a potential solution to the issue of providers refusing to provide abortion care, there are some difficulties that come with this approach. For one, state abortion bans could undermine the argument that abortion is the legal "standard of care," meaning that it is a widely accepted and prescribed treatment for pregnancy complications. Additionally, medical liability insurers generally do not cover damages from criminal acts, which puts the finger on the scales even more to not do anything.

     It is clear that the overturning of Roe v. Wade has had a major impact on the medical community, and the legal risks associated with providing abortion care have made the decision to provide the procedure even more difficult. It remains to be seen how the medical malpractice lawsuits will play out, and whether they will be successful in encouraging providers to provide necessary abortion care.

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