The Impact of Roe on Prenatal Tort Litigation: On the Public Policy of Unexpected Children

Abstract

This article provides a history of especial importance to abortion politics today, based on research involving a dataset of over 1,200 wrongful conception, wrongful birth, wrongful life, and standard torts for prenatal injuries. In documenting the rise of these torts over the twentieth century, I specifically focus on how this domain of litigation dramatically changed beginning in the 1960s and 1970s, with the recognition of the constitutional rights to contraception and abortion. I provide an exhaustive survey of an underappreciated yet robust arena of public policy at the intersection of reproductive rights and tort law, emphasizing the reciprocal relationship between these torts and reproductive rights. State courts and legislatures continue to debate into the present about whether to ban, permit, or restrict damages in these torts, debates that have been perennial since the early 1970s. Using several timelines created in Stata to plot the annual frequency of the above cases from the late 1800s into the present, as well as several maps providing a 50-state overview, I highlight a specific arena in which reproductive rights are forged, one revealing problematic aspects of a “post-Roe era” of public policy regarding the benefits and harms of unexpected children.