Making It Right: Preserving Wrongful Birth After Dobbs

By Natasha Statz-Geary

In overturning Roe v. Wade, the U.S. Supreme Court opened the floodgates for anti-abortion laws to sweep the country, radically transforming the legal landscape surrounding prenatal care. On the criminal side, centuries-old abortion bans have been given new life following Dobbs. On the civil side, statutes have empowered private citizens to sue anyone who “aids and abets” an abortion. These concerns have dominated much of the legal discourse following Dobbs, but another civil cause of action implicated in the decision has received little attention: wrongful birth.

Wrongful birth is a medical malpractice claim brought by parents who assert that but for a doctor’s negligent failure to detect a fetal abnormality, they would have terminated the pregnancy. Despite criticisms from disability activists and anti-abortion groups alike, the tort has served its dual aims of compensating victims and deterring negligent care for over fifty years. Scholars have long believed that the cause of action was made possible by Roe; following Roe’s reversal, the tort’s future is unclear. Wrongful birth is in jeopardy at the precise moment when women need it most. Deterrence and financial compensation are more important than ever in a world with more pregnancies and ambiguous legal standards.

This Note examines wrongful birth’s viability post-Roe and argues that the cause of action can remain available. After reviewing the tort’s history and arguing that it is not dependent on Roe, this Note proposes three novel theories plaintiffs can utilize to recover for wrongful birth: (i) an expanded “loss of deliberation and preparation” theory that encapsulates the harm flowing from delayed diagnosis and the lost chance to travel for a legal abortion; (ii) a statutory interpretation analysis through which plaintiffs can argue that their child’s condition would have fallen under an abortion-ban exception for fetal anomalies; and (iii) a choice of law analysis for plaintiffs whose prenatal care crossed state borders.

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