Unless the Illinois Supreme Court intervenes, a motorist who was involved in a traffic collision with a pregnant woman could be liable for the death of the woman's fetus through a voluntary therapeutic abortion.

Under Illinois' Wrongful Death Act, a fetus is considered a person and Michelle Williams's case is the first to claim damages for the death of a fetus that suffered no injury as a result of the defendant's conduct. Williams sued John Manchester for $1 million, claiming her abortion was the foreseeable result of his negligent driving.

A divided appeals court ruled in March that what has been dubbed the case of “the million-dollar fetus” could proceed. But Manchester is seeking Supreme Court review of a decision that, he argues, “impermissibly expands” the reach of the wrongful-death law and “raises significant public policy concerns.”

“Although the decision to terminate or to continue a pregnancy is a matter of private choice,” the petition for leave to appeal says,

the appellate court's decision has the effect of encouraging the choice to abort, as it creates an opportunity to recover for the death of the fetus. This recovery cannot occur if the mother carries the fetus to term.

Williams, who was three months pregnant, was a passenger in a car that collided with Manchester's vehicle at a Chicago intersection in October 2002. While the fetus was unharmed, she was hospitalized with a fractured pelvis and hip.

At the hospital, three doctors told Williams she might not be able to maintain the pregnancy because of the pelvic injury. She chose to have an immediate abortion followed by surgery to repair her pelvis.

A trial court judge summarily dismissed the case in March 2005, but a 2-1 majority of the First District Appellate Court reversed, finding that “under certain circumstances voluntary abortions are foreseeable as a result of the conduct of the underlying tortfeasor.”

“These circumstances would include a mother's decision to abort to avoid the risk of exacerbated physical injury to herself or the child during the foreseeable course of treatment by the mother for the direct injuries which she alone sustained in the prior accident,” Justice Joseph Gordon wrote for the majority.

Gordon also pointed to evidence that the fetus could have suffered radiation injuries from X-rays performed on Williams.

The Supreme Court petition cites extensively the dissent of Justice Robert Cahill, who said the wrongful-death law requires “an actionable injury to the fetus with recoverable damages that could have been maintained had death not intervened” and expressed concern about the “public policy implications lurking below the surface in this case.”

Both Manchester and Cahill argue that the radiation injury evidence is speculation unsupported by expert testimony. “[T]he only injury to the fetus upon which the appellate court could rely was its death,” Manchester says.

One newspaper columnist has said of the case, “This is one of those times when one would not wish to be a judge.” But the judicial headaches are a product of the Illinois Legislature which, in 1980, amended the wrongful-death law so that “The state of gestation or development of a human being when an injury is caused” would not prevent an actionable claim.

By Matthew Heller
6/12/07