Wrongful Abortion: A Wrong in Search of a Remedy

Abstract

"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. 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.