Wednesday, April 01, 2009

A Botched Abortion and Wrongful Death

On FindLaw today, I have a column discussing the case of Sycloria Williams, a woman who sought an abortion in her 22nd or 24th week of pregnancy and -- due to her doctor's failure to arrive in time -- delivered her fetus, reportedly still alive, on her own, at the clinic. After delivery, a co-owner of the clinic allegedly cut the umbilical cord and then placed the live fetus into a biohazard bag, which she then allegedly sealed and discarded (but which was subsequently discovered by police after the fetus's body had begun to decompose). The column takes up the question of what exactly makes this case as disturbing as it is, by distinction both from the abortion that Williams had sought to have, and from the abortions that an overwhelming majority of women who terminate their pregnancies undergo.

My objective in this blog post is to focus on the perspective of Sycloria Williams, the woman who went to the clinic to have an abortion. Quite apart from the morality or immorality of the clinic owner's alleged conduct with respect to the fetus, Williams has herself brought a lawsuit for wrongful death. My question for this blog post is whether such a claim could possibly be legitimate.

One answer is no. Williams may be able to complain about a number of things that occurred -- the traumatic circumstances of her delivery and the events that followed, along with the substandard medical care that she received. But she is not in a good position to complain about the fact that her fetus is dead. After all, she chose to terminate her pregnancy, and the manner she chose essentially guaranteed that the fetus would die. Had things gone as she had planned, the fetus would be as dead as it is now. She might not have suffered the physical pain and accompanying trauma accompanying labor and delivery, and she also might not have seen the body of the fetus (or the actions of the woman who placed the fetus, while alive, into a biohazard bag), about all of which she can justifiably complain. But these factors concern her experience of medical care (or the lack thereof), not with the fact that her fetus died, which is the basic "wrong" of which a plaintiff complains in a "wrongful death" suit. After consenting to a death, in other words, one is ill-placed to complain of its wrongfulness.

Another answer is yes, an answer at which one might arrive by two discrete paths.

The first route is to say that Sycloria Williams was misled by the clinic into believing that something other than a baby or fetus was going to die in the course of an abortion. If that were the case, then Williams had never truly given informed consent for an abortion. Like a woman who is given a cup of coffee that has been spiked, unbeknownst to her, with an abortifacient, Williams could potentially sue for wrongful death on the theory that she never really consented to terminate.

This argument -- which I believe is the one that Williams has chosen -- appears quite weak, to the extent that Williams was an adult at the time of the events in question (18) and was capable, in seeking an abortion, of figuring out with minimal research that a relatively developed fetus will die as a result of an abortion at 24 weeks gestation. Nonetheless, if her providers affirmatively misled her about what was to occur, she might have a claim (though I am betting she loses).

The second route is to suggest that Williams had agreed to an abortion but not to a post-abortion killing of a fetus delivered alive. That is, Williams had consented only to the removal of the fetus inside her body and to the dismemberment of that fetus to facilitate its removal from her body without causing her injury. Once the fetus was outside her body, however, the clinic no longer had her permission (which she was not in a position to give, in any event) to kill or otherwise harm her now-separate fetus. She had, once seeing the fetus alive, reportedly formed a bond and decided she wanted the fetus to live. The clinic had no right, at that point, to kill it.

To illustrate, imagine that a pregnant woman tried to terminate her pregnancy using a cocktail of drugs. As it turned out, however, the drugs were lodged in her esophagus and never made it into her bloodstream. She took the pregnancy to term and gave birth, after which she fell in love with her child. If the pharmacist from whom she had originally purchased the abortion drugs were to murder the child a day after she gave birth, she would surely be justified in bringing a wrongful death suit against the pharmacist, despite the fact that she had earlier tried to abort. To say this differently, a person can attempt to abort without thereby forfeiting future wrongful death suit options, if the abortion fails and the woman decides she wants the baby after all.

For Sycloria Williams, of course, the argument is a more challenging one than it would be for the woman in the above hypothetical example. Williams did not apparently decide at any point that she wanted to have a baby. She was reportedly waiting for the doctor to come and perform an abortion even at the moment that she delivered her fetus alive. It therefore will be somewhat difficult for her to maintain that she changed her mind (or that she made her change of mind clear to the people in the clinic) at the time the fetus was killed.

Nonetheless, the reality is that Williams had no reason to expect, once she delivered her fetus alive, that anyone would come along and kill the fetus, and she might accordingly not have had to say anything to "call off" the abortion -- it was arguably "called off" the moment she finished giving birth to it.

However one feels about this case, I suspect that people's reactions to Sycloria Williams' wrongful death lawsuit will not break down along pro-life/pro-choice ideological lines. And that is, in itself, a refreshing change of pace.

Posted by Sherry Colb