Can You Legally Sue Someone for Getting an Abortion?

In America, people often have differing opinions about abortion. If someone has an abortion and you disagree with their decision, can you sue? 

We discuss the limited circumstances where an abortion can lead to a lawsuit. However, laws about reproductive rights are complex and can change at any time. Talk to a lawyer near you for the most up-to-date information. 

Which States Allow Abortion Lawsuits? 

In 1973, the U.S. Supreme Court decided Roe v. Wade. Roe held that abortion was constitutionally protected. But in 2022, a second Supreme Court decision, Dobbs v. Jackson Women’s Health Organization, held that abortion was no longer a constitutional right. After the Court’s decision in Dobbs, states can allow abortion or outlaw it completely. 

Since 2022, 14 states have passed total abortion bans. Abortion bans usually include criminal and civil penalties for healthcare providers who violate them. Some states also allow private citizens to sue for damages from an abortion. These states include: 

• Alabama 
• Idaho 
• Kansas
• Louisiana 
• Nebraska 
• Oklahoma 
• West Virginia 
• Wisconsin 

What Kind of Lawsuit Can I File After an Abortion? 

Most states allow a wrongful death claim. In a wrongful death lawsuit, a deceased person’s surviving family members can get compensation if their loved one dies because of a wrongful act. Depending on the state, the wrongful act could be the abortion itself or a failure to get proper consent for the procedure. 

Four states allow people to sue those who “aid or abet” an abortion, including:

• Alabama
• Idaho
• Tennessee
• Texas

These laws, sometimes called bounty hunter laws, allow private individuals to sue those who provide travel assistance, financial support, and other forms of aid to a person seeking an abortion. 

Who Can Sue Over an Abortion? 

In a personal injury claim, the injured person is the plaintiff, and the person who caused the injury is the defendant.

Most states’ laws are specific about who can sue. Generally, the only proper plaintiffs are the following: 

• Pregnant person 
• Father of the unborn child 
• Parents of a pregnant minor 

Courts have also placed limits on who can sue. For example, Texas’ abortion law seems to allow anyone to sue over an abortion. However, when a person from Illinois sued a Texas abortion provider, the Texas court dismissed the case. Because the Illinois resident had not proven that the abortion had directly harmed them, the case could not continue. So, potential plaintiffs should be prepared to show how the abortion personally harmed them. 

Who Can I Sue Over an Abortion? 

In most states, the doctor is the only proper defendant in an abortion lawsuit. However, in states with “aiding and abetting” laws, anyone who offered help to a pregnant person could be a defendant. 

The pregnant person is one person who you probably can’t sue for an abortion. Most state abortion laws shield pregnant people from criminal and civil liability for seeking an abortion. So, it’s tough to sue a pregnant person for getting an abortion.  

Frequent Obstacles in Abortion Lawsuits 

Even in states that allow abortion lawsuits, victory is far from certain. In fact, the few attempts at suing abortion providers have largely been unsuccessful. Here are a few things you should consider before filing your lawsuit. 

Exceptions Might Apply

In most places, a person can only sue someone for performing an abortion if it violates state law. But abortion bans often include exceptions for medical emergencies and other situations. If the abortion falls within an exception, your lawsuit is unlikely to prevail. 

Evidentiary Issues

Recently, a man named Marcus Silva sued his former partner’s friends for helping her get an abortion. However, the Texas Supreme Court declined to force the partner to turn over the text messages that Silva requested. It agreed with the lower court that doing so could violate her Fifth Amendment rights. Courts could reach similar decisions in future cases. 

Legal Challenges

Because the laws that allow abortion lawsuits are pretty new, the legal ground they stand on is far from settled. For example, three of the four bounty hunter laws face legal challenges. An Arizona court also recently ruled that its wrongful death laws don’t extend to embryos or fetuses. Similar legal rulings will make it difficult for abortion lawsuits to succeed. 

Shield Laws

Dobbs changed the rules, but abortion remains legal in many states. In fact, after Dobbs, many states enhanced abortion rights by passing shield laws. Shield laws prevent people in one state from supplying evidence that might be used against someone in another state. These laws often allow people sued under another state’s law to file countersuits. In the abortion context, shield laws offer protections for people in states with abortion bans who seek out-of-state abortions. 

Here’s how an abortion shield law might work: Anna and Paul live in Austin, Texas. After learning that Anna is pregnant, they disagree about what to do. Anna decides to have an abortion in New Mexico. Anna’s mother, Dora, gives her money for the procedure. Anna’s friend Danielle drives her to New Mexico.

The procedure is performed by Dr. Dearden. After learning about the abortion, Paul sues Dora, Danielle, and Dr. Dearden in Texas. New Mexico’s shield law forbids New Mexico personnel from cooperating with any subpoenas, court orders, or other legal requests from the state of Texas. Without this information, Paul’s suit is likely to fail. And even if Paul prevails, the defendants could sue him under New Mexico law. 

Learn More About Abortion Lawsuits 

Suing someone for performing an abortion or helping someone else get an abortion isn’t easy. If you need further legal advice, find an experienced attorney near you.