Yale Journal of Health Policy, Law, and Ethics Volume 5 Issue 2 Yale Journal of Health Policy, Law, and Article 1 Ethics 2005 Wrongful Abortion: A Wrong in Search of a Remedy Ronen Perry Yehuda Adar Follow this and additional works at: https://digitalcommons.law.yale.edu/yjhple Part of the Health Law and Policy Commons, and the Legal Ethics and Professional Responsibility Commons Recommended Citation Ronen Perry & Yehuda Adar, Wrongful Abortion: A Wrong in Search of a Remedy, 5 YALE J. HEALTH POL'Y L. & ETHICS (2005). Available at: https://digitalcommons.law.yale.edu/yjhple/vol5/iss2/1 This Article is brought to you for free and open access by Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Yale Journal of Health Policy, Law, and Ethics by an authorized editor of Yale Law School Legal Scholarship Repository. For more information, please contact [email protected]. Perry and Adar: Wrongful Abortion: A Wrong in Search of a Remedy ARTICLES Wrongful Abortion: A Wrong in Search of a Remedy Ronen Perry, LL.D.* and Yehuda Adar, LL.D.t INTRODUCTION "Wrongful abortion" is an abortion that a pregnant woman is induced to undergo by negligent conduct (usually a medical misrepresentation).' As an example, early in her pregnancy a woman is told by her physician that a medication that she had taken will cause her baby to be born with a severe birth defect. Based on the expert opinion, she decides to undergo an abortion. Only after the abortion does she learn that the advice regarding the baby's health was a negligent misrepresentation and that the termination of the pregnancy was unnecessary. 2 In this Article, we argue that the law does not currently provide adequate incentives to avoid wrongful abortions, the consequences of which are often devastating. We suggest that the best solution to this problem may be built on the distinctive characteristics of the wrongful abortion setting. Validating the intuition that the status quo does not adequately respond to wrongful abortions requires a systematic and comprehensive analysis of existing law, and justifying our novel solution entails a thorough theoretical inquiry. Accordingly, this Article addresses two interrelated questions. First, how is * Professor, Faculty of Law, University of Haifa. t Adjunct Professor, Faculty of Law, University of Haifa. Visiting Scholar, Faculty of Law, University of Toronto. The authors are grateful to the editors of the Yale Journalof Health Policy, Law, & Ethics for their valuable comments. 1. As we shall see below, the term "wrongful abortion" may be used in a much broader sense, but we shall focus on its narrowly defined meaning for reasons also set out below. 2. See Martinez v. Long Island Jewish Hillside Med. Ctr., 512 N.E.2d 538, 538 (N.Y. 1987). Published by Yale Law School Legal Scholarship Repository, 2005 1 Yale Journal of Health Policy, Law, and Ethics, Vol. 5 [2005], Iss. 2, Art. 1 YALE JOURNAL OF HEALTH POLICY, LAW, AND ETHICS V:2 (2005) existing law likely to respond to wrongful abortions? We intentionally ask how the law is "likely to respond" and not how it actually responds. The problem of wrongful abortion has been the subject of judicial opinion only in a few sporadic cases, making it practically impossible to generate a comprehensive analysis of case law directly on this point. Our effort will therefore focus on identifying the legal issues involved and resolving them within existing (and relevant) legal frameworks. Second, how should the law respond to wrongful abortions? Wrongful abortions raise a unique problem to which current law does not provide an appropriate solution. Our objective is to discuss the various alternatives that policymakers might consider in response to this peculiar disparity. As there are only a handful of cases on the subject, and since our topic has not been discussed in any detail in the academic literature,3 we find it almost unavoidable to open this Article with an analysis of the factual settings in which wrongful abortions occur and a systematic itemization of their consequences. In Section I.A, we define more accurately the term "wrongful abortion" and explain through contrast and analogy the settings in which wrongful abortion cases arise. In Section I.B, we survey the social costs of wrongful abortions within two distinct categories: (a) parental losses, and (b) "loss of potential life," i.e., any loss that may be attributed to the destruction of potential human life. We point out where these two categories overlap and explain why they nonetheless merit separate discussion. Parts II and III discuss the anticipated legal response to wrongful abortions. In Part II we demonstrate that the law may respond quite effectively (although somewhat imperfectly) to parental losses within the traditional framework of tort law. In contrast, we show in Part III that nationwide, all branches of the law currently leave the loss of potential life (except for any overlap with parental losses) unaccounted for in most cases of wrongful abortion. We believe this is a significant and disturbing anomaly in American law, given that states' important and legitimate interest in preserving potential life has been well established in American legal thought. Finally, in Part IV we endeavor to find an appropriate legal means to rectify this inconsistency. We introduce and critically evaluate three possible legal paths of resolution: extending criminal liability to cover negligent inducement of abortion; expanding civil liability to cover the elements of the loss of potential life not currently compensable under tort law; and a discretionary civil fine, 3. The topic was mentioned only once, and rather briefly, in an American legal periodical. See Kathy Seward Northern, Procreative Torts: Enhancing the Common-Law Protection for Reproductive Autonomy, 1998 U. ILL. L. REV. 489, 527-29. Northern's article is mainly concerned with the violation of pregnant women's procreative autonomy. https://digitalcommons.law.yale.edu/yjhple/vol5/iss2/1 2 Perry and Adar: Wrongful Abortion: A Wrong in Search of a Remedy WRONGFUL ABORTION which we find the most attractive legal solution to the problem. At the outset, we emphasize that we take no stand concerning the fierce ongoing battle between the pro-life and pro-choice movements. We have no desire to provide either side with academic ammunition. We hope that both sides will support our effort: The proposed solution enhances the legal protection of states' interest in preserving potential life and at the same time improves the legal protection of the pregnant woman's right to privacy. It should be remembered that prevention of a wrongful abortion fulfills the prospective mother's true will. Therefore, our endeavor to strengthen the legal protection of the public interest in preserving potential life does not weaken the pregnant woman's procreative autonomy. On the contrary, since in cases of wrongful abortion the public interest in preserving potential life and the prospective mother's will coincide, our proposal simultaneously reinforces both without taking a stance on the appropriate scope of the abortion right. Supporters of abortion rights may argue that enhancement of the legal protection of potential life in various contexts may eventually undermine the mother's procreative autonomy. However, our proposal does not consider the unborn child to be a legal person.4 It is possible to protect a public interest in preserving certain life forms without recognizing their legal personhood. Legal protection of animals and plants serve as good examples. As adopting our proposal does not necessitate recognition of legal personhood in a fetus, it poses no risk to the mother's right to privacy (as long as and to the extent that it is recognized under the Constitution). Moreover, even if we based our proposal on the assumption that the fetus were a legal person, this would not necessarily turn the non-viable fetus into a constitutional person. In American jurisprudence, the idea that a legal person may not have all the rights of a constitutional person is well-established. Since only the interests of a constitutional person might be strong enough to overcome the pregnant woman's constitutional rights, recognizing the legal personhood of a fetus (at any stage of development) would not directly affect the pregnant woman's right to choose abortion.5 There is, however, the real possibility that a sweeping recognition of the legal personhood of fetuses in cases of wrongful abortion and their like may lead the Supreme Court to reevaluate its prior decisions on abortion rights. For those who fear this result, our proposal may be 4. However, several criminal statutes do consider the unborn child to be a legal person. See, e.g., Unborn Victims of Violence Act, 18 U.S.C.A. § 1841(a)(2)(C), (d) (West Supp. 2004) (stating that a fetus is a human being at any stage of gestation). 5. Cf Jeffrey Rosen, A Viable Solution: Why It Makes Sense To PermitAbortions and Punish Those Who Kill Fetuses, LEGAL AFF., Sept.-Oct. 2003, at 20, 21. Published by Yale Law School Legal Scholarship Repository, 2005 3 Yale Journal of Health Policy, Law, and Ethics, Vol. 5 [2005], Iss. 2, Art. 1 YALE JOURNAL OF HEALTH POLICY, LAW, AND ETHICS V:2 (2005) preferable to at least one of the alternatives.6 I. WRONGFUL ABORTION AND ITS SOCIAL COSTS A. The Factual Setting "Wrongful abortion" will be used in this Article to describe an abortion instigated by wrongful conduct, as opposed to an abortion which is performed in a wrongful manner,7 although this term may be construed to embrace both types of cases. 8 We further limit the scope of the term "wrongful abortion" to negligent inducement of abortion, 9 as opposed to intentional inducement.