N.J. Teen Sues School for "Unwanted Abortion"

A 17-year-old New Jersey girl has filed what may be an unprecedented suit for “unwanted abortion,” alleging that a school guidance counselor persuaded her to terminate a pregnancy against her will and religious beliefs.

New Jersey, like many states, does not allow claims for wrongful death of a fetus. But the teenager advances the novel tort theory that Carol Raffo, who worked at an alternative school in Hunterdon County, is liable for the loss of her child to an abortion she did not want to have.

“Contrary to the [girl's] express wishes to carry the child to term, Carol Raffo wrongfully overcame the will of the minor in her charge and wrongfully persuaded her to have an abortion,” the complaint, filed in federal court last month, says.

The girl, who was 15 at the time of the abortion, is seeking unspecified damages for emotional distress, while her parents, Eugene and Stacie Gordon, claim they should be compensated for “the loss of a grandchild, or potential grandchild.”

“Carol Raffo did not advise the parents that she was urging [their daughter] to have an abortion or even that she was discussing abortion with [her],” the plaintiffs allege. School officials fired Raffo after the parents informed them of the abortion.

Courts, however, have only found liability for unwanted abortion in a few cases involving medical malpractice. And the Gordons' case raises the specter of abortion clinics being sued for inadequate screening of patients who may have been coerced into having the procedure.

The plaintiffs' attorney, Edward J. Gilhooly of Morristown, N.J., is executive director of The Legal Center for Defense of Life, which provides free-of-charge legal services for pro-life causes.

According to the teenager's complaint, she got pregnant before the start of the 2004-05 academic year at Warren Hills Regional High School. She and her parents decided she would have the child and, in accordance with that decision, she transferred to the alternative Mountain Farms Campus school.

But within 10 days of enrolling, Raffo allegedly “began a campaign of intimidation and coercion ... to convince her to have an abortion” which culminated Nov. 13, 2004 when the counselor clandestinely took her to the “unsafe abortion clinic” where the procedure was performed. The clinic is not named as a defendant.

There is precedent for the teenager to claim damages for the physical injury of an unwanted abortion and emotional distress resulting from that injury. Breyne v. Potter, 574 S.E.2d 916 (2002). And a New Jersey Supreme Court decision suggests the parents may be able to show they suffered an injury.

“A family is woven of the fibers of life; if one strand is damaged, the whole structure may suffer,” the court said in Berman v. Allen, 404 A.2d 8 (1979).

But the same court has also ruled that “the Legislature in enacting the original [Wrongful Death] Act, and in subsequent revisions, never intended to create a derivative action in favor of the survivors of a fetus never born alive.” Giardina v. Bennett, 545 A.2d 139 (1988).

Should the Gordons be allowed to, in effect, create that same derivative action through the common law?

By Matthew Heller
11/30/06