Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, June 6, 2018

Does recognizing stillborn babies threaten abortion rights?

U of Arkansas law prof Jill Wieber Lens argues that tort law must recognize the true nature of the loss when medical negligence results in a stillborn baby:

Tort law, for the most part, already enables parents to sue when someone wrongly causes their child’s stillbirth . . . . However, that tort claim must properly recognize the extent of the parents’ loss: It’s not just a loss of pregnancy or of a fetus ― it’s the death of a child. Only this kind of recognition correctly incentivizes doctors and provides compensation to grieving parents.  

Proper recognition of the devastating loss after the death of a desired unborn child does not threaten abortion rights, and we cannot let the ongoing abortion debate minimize that devastation. This is something the pro-abortion rights and anti-abortion movements should be able to agree on.

Both sides of the abortion debate could and should agree on this, but I'm skeptical that they will.  Pro-abortion rights advocates are leery to recognize the fetus as a child.  If passage through the birth canal loses its moral significance, the abortion debate opens up to important and sensible new policy questions that have been marginalized in the U.S. since Roe.


Vischer, Rob | Permalink