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Saturday, August 06, 2022

Wrongful Birth Actions

Dobbs will have many ripple effects in law and jurisprudence, and I thought I'd talk about one that comes up when I teach Torts. Many states recognize wrongful birth actions. How will these change in light of Dobbs?

There are two types of wrongful birth actions. One involves negligence or a product defect in birth control. There can then be a tort action against the provider or manufacturer. Determining the appropriate amount of damages in these cases is tricky. (Pregnancy costs only, child-rearing costs included, etc.) In class, I ask students whether failing to get an abortion in these circumstances constitutes a failure to mitigate, which provokes a good deal of discussion. These birth control actions will survive Dobbs because the contraception right remains. The failure to mitigate argument, assuming it was valid before Dobbs, probably will not survive in states that ban abortion. This means that, on average, the damage awards in these cases will probably increase. 

The second type of wrongful birth action involves negligent pre-natal care. The argument is that a doctor was negligent and did not realize that a fetus was suffering from some abnormality that might well lead the parents to seek an abortion. This sort of claim will almost never survive in a state that restricts abortion. The fact that people could obtain an abortion in another state would probably not be understood as consistent with the public policy of the home state in defining the scope of its tort actions.

Anyway, this is just a rough take on this topic. But there are many more unexpected or unknown implications of Dobbs that will play out in the coming years. 


Posted by Gerard Magliocca on August 6, 2022 at 09:55 AM | Permalink


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