Friday, May 26, 2023
Yvonne Lindgren & Nancy Levit, Reclaiming Tort Law to Protect Reproductive Rights, 75 Alabama L.Rev. (2023)
In Dobbs v. Jackson Women’s Health, the Supreme Court overruled Roe v. Wade, the constitutional floor that had protected the abortion right for nearly fifty years, and returned the issue of abortion to the states to regulate, restrict, criminalize, or protect at the state-level. In the post-Roe era, states are increasingly turning to private law to restrict travel, access to medical care, and undermine privacy of individuals seeking abortion. Three states have passed antiabortion civil enforcement “bounty” provisions patterned on Texas’s SB8 that allows private citizens to sue providers or third parties who aid and abet an abortion that violates the state’s six-week ban. At least half a dozen states have signaled that they will pass their own civil bounty antiabortion provisions. Other states, such as Missouri, have introduced legislation that would permit any private citizen to sue anyone who helps a pregnant person travel out of state to obtain an abortion. Aggressive protesting at abortion clinics and surveillance of out-of-state license plates and people entering abortion clinics have also been on the rise as private citizens take up the charge of enforcing state antiabortion laws. Under this private law scheme, pregnant bodies become politicized legal subjects to be disciplined and surveilled by the public to enforce a state’s policy agenda without constitutional and civil law protections.
This Article argues that the use of private law to enforce abortion bans — a function that had been previously exclusively patrolled through public law — is antithetical to the purpose and function of private law to protect individuals from tortious harms by third parties. Private law is designed to compensate individuals for harms and to protect the community more broadly by discouraging individuals from engaging in harmful behavior through the deterrent force of damage awards. However, civil enforcement regimes are eroding the boundary between public and private law and exposing people to private harms through state capture of private law. These civil provisions are often coupled with criminal enforcement regimes that deprive pregnant persons of necessary medical care. Rather than protect individuals from privacy invasions by third parties, these laws incentivize the surveillance and privacy intrusions that will necessarily result from the regime of private enforcement and aggressive protesting at abortion clinics. Thus, in the post-Roe landscape, abortion patients and providers have lost both constitutional protection and private law’s protection against harms inflicted by private actors. This Article sets forth a framework to both reassert tort law’s function to offer protection against privacy invasions by third parties and restore private law’s role in expressing normative values of the community — rather than of the state — that rests at the heart of a private law regime.
It is a critical moment to challenge the emerging trend of state capture of private law and reestablish private law’s traditional role to guard against privacy intrusions by third parties. Torts such as intrusion upon seclusion, public disclosure of private facts, infliction of emotional distress, and federal civil rights violations, as well as tort claims for providers such as interference with prospective business relations and civil RICO to name only a few may serve to reclaim private law’s primary purpose to protect individuals from infringement by third parties. Shielding abortion patients and providers from surveillance, detection, and violations of medical privacy may limit overreach by bounty hunters and protestors. More importantly, it will reclaim private law’s role to protect individuals and providers in the constitutional vacuum left in the wake of Dobbs.