Emily
Editor, Senior Moderator
https://scholarship.law.nd.edu/cgi/viewcontent.cgi?article=1909&context=ndlr
Thomas R. Eller, Informed Consent Civil Actions for Post-Abortion Psychological Trauma, 71 Notre Dame L. Rev. 639 (1996).
Available at: http://scholarship.law.nd.edu/ndlr/vol71/iss
The purpose of this Article is to explore under what circumstances a
woman who has sustained psychological damage from an abortion may
maintain a cause of action against the abortion provider for failing to have
properly informed her before the procedure of the risk of adverse psycho-
logical consequences which could be caused or aggravated by the abortion.
These consequences can be serious and destructive. Every year in the
United States approximately one and one-half million legal abortions are
performed.' According to some authorities, ten to fifteen percent of wo-
men who have had an abortion are subject to long-term depression or emo-
tional distress caused by the procedure; 2 other studies have found that
fewer than ten percent of women who have had a legal abortion during
their first trimester develop long-term psychiatric or emotional reactions. 3
In addition to depression, reactions after abortion include repression, 4 a
sense of loss, 5 guilt, 6 sleeping disorders, 7 anniversary reactions, 8 disturbed
relationships with men, 9 obsessive-compulsive behavior, 10 suicide at-
tempts,1 1 and psychotic and conversion reactions.1 2 One factor which indi-
cates whether a woman will sustain adverse psychiatric or emotional effects
is her prior strength of character;1 3 low self-efficacy also has been found to
indicate that emotional or psychiatric harm may occur. 14 Other factors in-
clude conservative social values and religious beliefs,' 5 high self-character
blame, 16 unresolved conflicts about the pregnancy, 17 poor marital or home
relationships,1 8 present or previous psychiatric contacts,' 9 lack of perceived
support on abortion decisions from others,2 0 history of multiple abor-
tions,2 1 the fact of adolescence itself,2 2 and pressure from others in decid-
ing to have an abortion.23 The risk of depression is also higher in women
who undergo abortions because of medical or genetic reasons than in
those having abortions for psycho-social reasons.2 4 On the other hand, an
abortion after the first trimester is more likely, unless performed for ge-
netic reasons, to cause adverse mental and emotional consequence than
one performed earlier.2 5
It would be reasonable to expect, therefore, that there would be a
number of reported court cases in which women have asserted claims for
psychological injuries on grounds that they were at predictable high risk to
sustain these injuries from an abortion and were not properly warned of
relevant risks beforehand by the provider. Surprisingly, the little case law
there is does not focus on informed consent or on core questions of consti-
tutional rights but on whether damages are recoverable for the asserted
injury.2 6 Each area, however, is relevant to this Article's basic question and
we should begin with informed consent.2...
Thomas R. Eller, Informed Consent Civil Actions for Post-Abortion Psychological Trauma, 71 Notre Dame L. Rev. 639 (1996).
Available at: http://scholarship.law.nd.edu/ndlr/vol71/iss
The purpose of this Article is to explore under what circumstances a
woman who has sustained psychological damage from an abortion may
maintain a cause of action against the abortion provider for failing to have
properly informed her before the procedure of the risk of adverse psycho-
logical consequences which could be caused or aggravated by the abortion.
These consequences can be serious and destructive. Every year in the
United States approximately one and one-half million legal abortions are
performed.' According to some authorities, ten to fifteen percent of wo-
men who have had an abortion are subject to long-term depression or emo-
tional distress caused by the procedure; 2 other studies have found that
fewer than ten percent of women who have had a legal abortion during
their first trimester develop long-term psychiatric or emotional reactions. 3
In addition to depression, reactions after abortion include repression, 4 a
sense of loss, 5 guilt, 6 sleeping disorders, 7 anniversary reactions, 8 disturbed
relationships with men, 9 obsessive-compulsive behavior, 10 suicide at-
tempts,1 1 and psychotic and conversion reactions.1 2 One factor which indi-
cates whether a woman will sustain adverse psychiatric or emotional effects
is her prior strength of character;1 3 low self-efficacy also has been found to
indicate that emotional or psychiatric harm may occur. 14 Other factors in-
clude conservative social values and religious beliefs,' 5 high self-character
blame, 16 unresolved conflicts about the pregnancy, 17 poor marital or home
relationships,1 8 present or previous psychiatric contacts,' 9 lack of perceived
support on abortion decisions from others,2 0 history of multiple abor-
tions,2 1 the fact of adolescence itself,2 2 and pressure from others in decid-
ing to have an abortion.23 The risk of depression is also higher in women
who undergo abortions because of medical or genetic reasons than in
those having abortions for psycho-social reasons.2 4 On the other hand, an
abortion after the first trimester is more likely, unless performed for ge-
netic reasons, to cause adverse mental and emotional consequence than
one performed earlier.2 5
It would be reasonable to expect, therefore, that there would be a
number of reported court cases in which women have asserted claims for
psychological injuries on grounds that they were at predictable high risk to
sustain these injuries from an abortion and were not properly warned of
relevant risks beforehand by the provider. Surprisingly, the little case law
there is does not focus on informed consent or on core questions of consti-
tutional rights but on whether damages are recoverable for the asserted
injury.2 6 Each area, however, is relevant to this Article's basic question and
we should begin with informed consent.2...