Abortion rights and wrongful death law seem not to have much in common, but a new federal lawsuit in Nebraska may have an interesting effect on both abortion laws and wrongful death laws across the country. The lawsuit stems from a tragic auto accident in which a Maryland couple was killed with their two children when a tractor-trailer struck their stationary automobile. It turns out that the woman was also pregnant with the couple’s third child. The estate brought the action for wrongful death on behalf of the entire family and cited a 2003 Nebraska law which extends legal protections to an unborn fetus. This is the first case to raise such a statute, but it appears that the law should also give wrongful death rights to the unborn fetus.
Readers can now probably see why this law is problematic when viewed in the light of Roe v. Wade and its subsequent cases. If an unborn fetus is considered a child in the eyes of the law, so that it can be granted legal rights, then it will legally (rather than morally) be murder to terminate the pregnancy. I assure you I am making no stance on the topic here.
Most of the States that have enacted laws similar to the one in Nebraska are right wing leaning States such as Utah, Florida, and Nebraska, which are keen on stronger abortion laws and restrictions. The Rhode Island Supreme Court in Amica v. Miccolis held that a nonviable fetus could not maintain a cause of action for wrongful death because it is not a person within the meaning of the wrongful death statute. If this auto accident occurred in RI, the fetus would not have an individual cause of action. If the child, however, could have been delivered (by C-Section for instance) and then died from the injuries sustained in the automobile accident, then a cause of action for wrongful death could proceed.
It will be interesting to follow cases like this one as they unfold. Its mark on federal law could be wide-reaching and may cause more States to enact similar legislation.
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