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The term wrongful abortion refers to an abortion that a pregnant woman undergoes as a result of negligent or malicious conduct by a physician or health care provider. [1]
There are at least two archetypal cases of wrongful abortion:
In a case of the first type, a pregnant woman seeks medical counseling regarding the possible perils related to the continuance of her pregnancy. The adviser mistakenly maintains that the pregnancy is fraught with substantial risks for the woman, and she consequently decides to undergo an abortion. Later it is found that the information given by the adviser was wrong. [2] [3]
In a case of the second type, the woman seeks advice concerning the health and bodily integrity of her fetus (see genetic counseling, prenatal diagnosis), and decides to undergo an abortion after being told that the fetus is deformed or disabled. Here, too, it is eventually realized that the information was wrong. [4] [5] [6]
"Wrongful abortion" is comparable to other types of birth-related malpractice. One category of birth-related malpractice consists of cases in which negligence by the defendant resulted in the birth of a healthy yet unwanted child. The negligence may manifest itself in the manufacture, provision, or installation of contraceptives; in the performance of vasectomy or tubal ligation; or in the carrying out of an abortion. These cases are usually labeled "wrongful pregnancy" (or "wrongful conception" in appropriate cases). In a way, they represent a mirror image of wrongful abortion cases, although they are not exact reflections. In cases of wrongful pregnancy, the doctor's negligence makes the fulfillment of the parents’ will impossible, while in wrongful abortion cases the doctor's negligence instigates, but does not necessitate, a decision that turns out to be inconsistent with such will.
Another category of birth-related malpractice, [7] more closely related to wrongful abortion, consists of cases in which a woman seeks medical advice regarding the health of her fetus, and decides to conceive or to continue her pregnancy once the adviser maintains that the fetus will not be born with congenital disabilities, a statement that is later found to be incorrect. The parents’ cause of action for their resulting losses is labeled "wrongful birth," while the infant’s cause of action for their own losses is termed "wrongful life." Wrongful birth is a more accurate mirror image of wrongful abortion. [8] The former deals with the non-prevention of the birth of an unwanted child, whereas the latter deals with the prevention of the birth of a wanted child. In both cases the defendant’s negligence does not make the fulfillment of the parent’s will physically impossible, but instigates a decision that turns out to be inconsistent with such will.
Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States generally protected a right to have an abortion. The decision struck down many abortion laws, and caused an ongoing abortion debate in the United States about whether, or to what extent, abortion should be legal, who should decide the legality of abortion, and what the role of moral and religious views in the political sphere should be. The decision also shaped debate concerning which methods the Supreme Court should use in constitutional adjudication. The Supreme Court overruled Roe in 2022, ending the constitutional right to abortion.
Planned Parenthood v. Casey, 505 U.S. 833 (1992), was a landmark decision of the Supreme Court of the United States in which the Court upheld the right to have an abortion as established by the "essential holding" of Roe v. Wade (1973) and issued as its "key judgment" the restoration of the undue burden standard when evaluating state-imposed restrictions on that right. Both the essential holding of Roe and the key judgment of Casey were overturned by the Supreme Court in 2022, with its landmark decision in Dobbs v. Jackson Women's Health Organization.
The abortion debate is a longstanding and contentious discourse that touches on the moral, legal, medical, and religious aspects of induced abortion. In English-speaking countries, the debate most visibly polarizes around adherents of the self-described "pro-choice" and "pro-life" movements. Pro-choice supporters uphold that individuals have the right to make their own decisions about their reproductive health, and that they should have the option to end a pregnancy if they choose to do so, taking into account various factors such as the stage of fetal development, the health of the woman, and the circumstances of the conception. Pro-life advocates, on the other hand, maintain that a fetus is a human being with inherent rights that cannot be overridden by the woman's choice or circumstances, and that abortion is morally wrong in most or all cases. Both terms are considered loaded words in mainstream media, where terms such as "abortion rights" or "anti-abortion" are generally preferred.
The Partial-Birth Abortion Ban Act of 2003 is a United States law prohibiting a form of late termination of pregnancy called "partial-birth abortion", referred to in medical literature as intact dilation and extraction. Under this law, any physician "who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both". The law was enacted in 2003, and in 2007 its constitutionality was upheld by the U.S. Supreme Court in the case of Gonzales v. Carhart.
Late termination of pregnancy, also referred to politically as third trimester abortion, describes the termination of pregnancy by inducing labor during a late stage of gestation. In this context, late is not precisely defined, and different medical publications use varying gestational age thresholds. As of 2015 in the United States, more than 90% of abortions occur before the 13th week, 1.3% of abortions in the United States took place after the 21st week, and less than 1% occur after 24 weeks.
Abortion in the Netherlands was fully legalized on 1 November 1984, allowing elective abortion up to the 24th week of the pregnancy. Abortion for "serious medical reasons" can be performed after 24 weeks. There used to be a mandatory five-day waiting period for abortions done after one's menstrual period is 17 days overdue. However, on 21 June 2022, Dutch parliament approved a law to scrap the mandatory five-day reflection period before undergoing an abortion, saying women with a joint consultation with the doctor, should be able to determine the time before making a decision. The law went into effect in January 2023.
Stenberg v. Carhart, 530 U.S. 914 (2000), was a landmark decision of the US Supreme Court dealing with a Nebraska law which made performing "partial-birth abortion" illegal, without regard for the health of the mother. Nebraska physicians who performed the procedure contrary to the law were subject to having their medical licenses revoked. The Court struck down the law, finding the Nebraska statute criminalizing "partial birth abortion[s]" violated the Due Process Clause of the United States Constitution, as interpreted in Planned Parenthood v. Casey and Roe v. Wade.
The paternal rights and abortion issue is an extension of both the abortion debate and the fathers' rights movement. Abortion can be a factor for disagreement and lawsuit between partners.
Wrongful life is the name given to a cause of action in which someone is sued by a severely disabled child for failing to prevent the child's birth. Typically, a child and the child's parents will sue a doctor or a hospital for failing to provide information about the disability during the pregnancy, or a genetic disposition before the pregnancy. Had the mother been aware of this information, it is argued, she would have had an abortion, or chosen not to conceive at all.
Conscience clauses are legal clauses attached to laws in some parts of the United States and other countries which permit pharmacists, physicians, and/or other providers of health care not to provide certain medical services for reasons of religion or conscience. It can also involve parents withholding consenting for particular treatments for their children.
Abortion in Israel is permitted when determined by a termination committee, with the vast majority of cases being approved, as of 2019. The rate of abortion in Israel has steadily declined since 1988, and compared to the rest of the world, abortion rates in Israel are moderate. According to government data, in Israel, abortion rates in 2016 dropped steadily to 9 per 1,000 women of childbearing age, lower than England (16.2) and the United States (13.2). 99% of abortions are carried out in the first trimester. Despite allegations of permitting abortion under limited circumstances, Haaretz noted in 2019 that this is not the case, and abortion is almost always permitted in Israel.
Abortion is illegal in El Salvador. The law formerly permitted an abortion to be performed under some limited circumstances, but in 1998 all exceptions were removed when a new abortion law went into effect.
In re A.C., 573 A.2d 1235 (1990), was a District of Columbia Court of Appeals case. It was the first American appellate court case decided against a forced Caesarean section, although the decision was issued after the fatal procedure was performed. Physicians performed a Caesarean section upon patient Angela Carder without informed consent in an unsuccessful attempt to save the life of her baby. The case stands as a landmark in United States case law establishing the rights of informed consent and bodily integrity for pregnant women.
This is a timeline of reproductive rights legislation, a chronological list of laws and legal decisions affecting human reproductive rights. Reproductive rights are a sub-set of human rights pertaining to issues of reproduction and reproductive health. These rights may include some or all of the following: the right to legal or safe abortion, the right to birth control, the right to access quality reproductive healthcare, and the right to education and access in order to make reproductive choices free from coercion, discrimination, and violence. Reproductive rights may also include the right to receive education about contraception and sexually transmitted infections, and freedom from coerced sterilization, abortion, and contraception, and protection from practices such as female genital mutilation (FGM).
In Judaism, views on abortion draw primarily upon the legal and ethical teachings of the Hebrew Bible, the Talmud, the case-by-case decisions of responsa, and other rabbinic literature. While most major Jewish religious movements discourage abortion, except to save the life of a pregnant woman, authorities differ on when and whether it is permitted in other cases.
Pemberton v. Tallahassee Memorial Regional Center, 66 F. Supp. 2d 1247, is a case in the United States regarding reproductive rights. In particular, the case explored the limits of a woman's right to choose her medical treatment in light of fetal rights at the end of pregnancy.
Abortion in Paraguay is illegal except in case of the threat to the life of the woman. Anyone who performs an abortion can be sentenced to 15 to 30 months in prison. If the abortion is done without the consent of the woman, the punishment is increased to 2 to 5 years. If the death of the woman occurred as a result of the abortion, the person who did the procedure can be sentenced to 4 to 6 years in prison, and 5 to 10 years in cases in which she did not consent. In Paraguay, 23 out of 100 deaths of young women are the result of illegal abortions. Concerning this death rate, Paraguay has one of the highest in the region.
Wrongful birth is a legal cause of action in some common law countries in which the parents of a congenitally diseased child claim that their doctor failed to properly warn of their risk of conceiving or giving birth to a child with serious genetic or congenital abnormalities. Thus, the plaintiffs claim, the defendant prevented them from making a truly informed decision as to whether or not to have the child. Wrongful birth is a type of medical malpractice tort. It is distinguished from wrongful life, in which the child sues the doctor.
Abortion-rights movements, also self-styled as pro-choice movements, are movements that advocate for legal access to induced abortion services, including elective abortion. They seek to represent and support women who wish to terminate their pregnancy without fear of legal or social backlash. These movements are in direct opposition to anti-abortion movements.
Abortion in South Korea was decriminalized, effective 1 January 2021, by a 2019 order of the Constitutional Court of Korea. It is currently legal throughout pregnancy, as no new law has been enacted. Thus there are no gestational limits or other restrictions.
