Wrongful Abortion: A Wrong in Search of a Remedy

Abstract:     
Wrongful abortion is an abortion that a pregnant woman is induced to undergo by a negligent conduct (usually a medical misrepresentation). For example, early in her pregnancy a woman is told by her physician that a medication that she had taken would 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.

Underlying our article is a fundamental intuition that the law does not currently provide adequate incentives to avoid wrongful abortions considering their obviously devastating consequences (one of which is the loss of potential human life), and an innovative understanding that the best solution to this problem may be built on the distinctive characteristics of the wrongful-abortion setting. Validating the basic intuition requires a systematic and comprehensive analysis of existing law, and justifying the innovative solution entails a thorough theoretical inquiry.

Accordingly, the article addresses two interrelated questions. First, how is existing law likely to respond to wrongful abortions? We ask how the law is likely to respond and not how it actually responds, because the problem of wrongful abortion has been the subject of judicial opinion only in very few sporadic cases, making it practically impossible to generate a comprehensive analysis of case law directly on this point.

Second, how should the law respond to wrongful abortions? As our analysis of positive law will reveal, wrongful abortions raise a unique problem to which current law does not provide an appropriate solution. Our objective will then be to discuss the various alternatives that policy makers may consider in response to this peculiar disparity.

Number of Pages in PDF File: 129

Keywords: negligence, tort law, criminal law, constitutional law, abortion, economic analysis, deterrence

JEL Classification: K13, K14, K19

Accepted Paper Series