Burdened by Life: A Brief Comment on Wrongful Birth and Wrongful Life

Written by Brady Begeal, Topics Chair, Albany Government Law Review Member

Introduction

In Roe v. Wade, the United States Supreme Court held that “the right to privacy . . . is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.”[1] Over the past several decades, prenatal torts like wrongful birth and wrongful life have developed from the judicially recognized right to have an abortion.  Nearly all of the states recognize wrongful birth claims, and four accept wrongful life claims.[2] What do these two actions entail?  Although there are many permutations of how either action can arise, and sometimes they carry a different label, a typical fact pattern for both actions goes as follows.

A woman becomes pregnant and begins the typical process for pre-natal care.  She goes to the doctor for check-ups and the doctor monitors the pregnancy and guides the expecting mother through each stage.  Then, during the pregnancy, a risk that the unborn child will be born with birth defects becomes apparent to the doctor.  At some point, the doctor acts negligently in some way, perhaps by a failed diagnosis, failing to proscribe the proper course for the woman to take, proscribing an improper method, or simply failing to warn the mother of the risks of which the doctor is aware.  Finally, the woman gives birth, but the baby is born with some kind of severe birth defect or impairment.  This is where the two actions diverge.

An action for wrongful birth is brought by the mother.  Essentially, she argues that but for the negligence of the doctor, she would have decided to have abortion and terminated the pregnancy.[3] The mother argues that she has lost a right to which she is entitled to; the right to make an informed decision as to whether or not to have a child with birth defects.  Now, since the child has been born, and born with birth defects, the parent or parents demand damages associated with having to raise a disabled child.

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Taking the Fight Against Cyber-Bullies Outside The School House Gate

Michael Telfer, Editing Chair, Albany Government Law Review Member

With the widespread use of the Internet in the last decade and the creation of websites such as Facebook and YouTube, the ability for people to connect with one another across the globe and with people they have lost touch with has been enthusiastically welcomed.  With the great benefits that new technology brings, also comes the ability for people to use it to the detriment of others.

Bullying has existed “as long as schools have,” but today bullying is no longer confined to the school house gates or even prevented at one’s front door, as it can “follow students to their rooms . . . their cell phones[,] or online.”[1] Through cyber-bullying, bullies can now “harass, threaten or intimidate others” by “e-mail, instant messaging, blogs, chat rooms, pagers, cell phones, and gaming systems.”[2] Specifically, bullies engage in cyber-bullying by videotaping their peers with their cell phones and posting embarrassing videos online through YouTube, creating fake Facebook profiles to steal the identify of other students,[3] and posting embarrassing comments on Facebook to humiliate other students.[4] Reports of students who have been victims of cyber-bullying have become nationwide news stories, such as the suicide of a freshman at Rutgers University in New Jersey who “jumped to his death . . . after his dormitory roommate and another student posted a video of sexual encounters he had with another man online.”[5]

As has been addressed in a previous Fireplace article, the issue of whether school districts can punish students for cyber-bullying when the student’s right to free speech is implicated is not uniformly defined.[6] Due to the fact that these incidents exist off of school grounds, the ability for schools to take action against cyber-bullies is limited because action taken by a school district can only be justified if the student’s online speech “materially disrupts class work or involves substantial disorder o[f] the rights of others.”[7] The uncertainty of the state of the law is not helped by the fact that the Supreme Court has “not addressed online student speech.”[8] The ability of schools to combat cyber-bullying has been tested in at least one case in California where a parent had his child’s suspension, due to the posting of a video on YouTube, overturned when the court found the disruption to the school caused by the video posting was “only minimal.”[9]

Since cyber-bullying usually impacts one student’s emotional well being and does not affect the larger school environment, students may be unable to rely on their school to protect them if cyber-bullying happens outside of school, which in most cases it does.   The question this article seeks to answer is whether victims of cyber-bullying have legal remedies through either criminal or civil laws of New York.

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Snyder v. Phelps: The Freedom of Speech v. Funeral Sanctity Showdown in the U.S. Supreme Court

Elizabeth Trachy, Albany Government Law Review Member

Introduction

A case is pending in the Supreme Court that will put to the test whether the First Amendment to the Constitution protects offensive speech just as rigorously as it protects the speech we value.  On March 3, 2006, Lance Corporal Matthew Snyder was killed in the line of duty in Iraq.  At his funeral, the Westboro Baptist Church, a Kansas-based church known for its “fire and brimstone” fundamentalist religious faith, protested with signs bearing phrases such as “God Hates the USA,” “God hates you,” “Semper fi fags,” and “Thank God for dead soldiers.”[1] Albert Snyder filed suit against the Phelps and the Westboro Baptist Church alleging five state tort claims — defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy.  A jury returned a verdict in favor of Snyder, awarding him $2.9 million in compensatory damages and a total of $8 million in punitive damages.[2]

On appeal, the Fourth Circuit reversed, holding that the Phelps’ expression was protected speech under the First Amendment and was therefore not subject to tort liability.[3] The Fourth Circuit’s decision, and the upcoming decision by the United States Supreme Court, has commanded the attention of the nation, which has widely condemned the actions of the Westboro Baptist Church.  The dilemma is that the First Amendment protects speech regardless of its offensive nature and the effect it may have on its audience, because to punish offensive speech may lead to the censorship of unpopular ideas.  “[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it.  Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.”[4]

The Supreme Court, which heard oral arguments on the case on October 6, 2010, will attempt to set aside its emotional reactions and decide the legal issue of whether Albert Snyder can recover under a speech-based tort claim for the injury he suffered as a result of the Phelps’ behavior or whether the Phelps’ egregious conduct is constitutionally protected.  If the Justices cannot set their emotional responses aside, we may see a decision which crafts a “funeral exception” to the First Amendment’s right to freedom of speech, thus beginning a long journey down a slippery slope that slowly erodes the fundamental principle that the First Amendment protects individuals’ opinions—no matter how offensive or disagreeable they may be.

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Does The Cat Have New York City’s Tongue?: What Can New York City Do To Address Concerns Over “Catcalls”?

Jason Riegert, Albany Government Law Review Member

Every day, young women in this country are faced with challenges.  One challenge that many women face are “catcalls.”  A catcall is “a loud whistle or a comment of a sexual nature made by a man to a passing woman.”[1] An example of a catcall might be something as innocent as: “hey baby, what’s up?,” if shouted to a female stranger passing by.  While such remarks may appear harmless, the problem that arises from these catcalls is a question of harassment.  Are these statements being said in a way that threatens women, or are these simply a form a flattery that women should take as compliments?  Those are the questions that the New York City Council Committee on Women’s Issues is attempting to answer.  The committee met October 28, 2010 to discuss the potential of banning “cat-calls” in New York City.[2]

At the meeting, testimony was heard “from women who said men regularly follow them, yell at them and make them feel unsafe and uncomfortable.”[3] A number of women were called in to discuss the effects that catcalling has had on their lives, stating “[t]his harassment limits the rights and freedoms of women and girls to enjoy a simple walk outside . . . .”[4] These women gave examples of the challenges they face and described the problem as being “an issue of safety.”[5] One organization, known as “Hollaback,” was formed five years ago to stand up to such harassment and “is now pushing the city to commission a study, a public awareness campaign, and perhaps even legislation creating ‘no-harassment zones’ around schools to protect young women.”[6] While Council members are open to many of the ideas, they are still in the process of determining what can be done about street harassment.[7] If legislation is put into effect, a vital issue will be enforcement, “since the concept of no-harassment zones could encroach on First Amendment rights.”[8] This scenario begs the question: can New York City effectively ban catcalls?

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