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Roe’s Right is Not a Trial Right

Roe v. Wade famously incorporated abortions into the “zone of privacy” protected by our Federal Constitution. While most consider the decision whether to have an abortion “private,” largely in light of Roe and its progeny, they may be surprised to learn that there is no personal right to the privacy of these matters in a courtroom.

Cartledge v. Montano
Recently in Georgia, the court in Cartledge v. Montano determined that it was acceptable for the defense to introduce evidence of the plaintiff’s prior abortions in a medical malpractice lawsuit.

The fact that prior abortions could have damaged the very part of the plaintiff’s body she claimed was harmed due to the negligence of an OBGYN during an unrelated procedure was highly relevant to the defendant’s case. Conversely, the plaintiff argued this evidence would prejudice her right to a fair trial before the jury. Rather than exclude testimony regarding her prior abortions, the trial court admitted the evidence and provided the jury with an instruction to limit consideration of that evidence to only the issue of causation of the injuries.

The judge’s discretion to allow the use of the evidence flows primarily from Georgia’s rules of evidence. Illinois, like Georgia, has a rule that all relevant evidence is admissible unless its value is substantially outweighed by a danger of unfair prejudice, confusion of the issues, or misleading the jury, in which case a judge may choose to exclude the evidence.

Prejudicial Evidence
The decision in Cartledge raises ubiquitous concerns about prejudicial evidence, albeit in medical malpractice claims. These cases often involve what are already very personal injuries, where plaintiffs must put their wounds on display for the jury to examine, the judge to rule on and the defense to indict. Add to this the “danger of unfair prejudice” that a plaintiff faces in the eyes of a jury when her previous decision to have an abortion is put before them, and she faces a significant obstacle to restitution.

While “limiting instructions” are commonly used in our trial system, it is widely recognized that they are ineffective. As was noted in Krulewitch v. United States, “The naive assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fiction.”

Whether or not one accepts or condemns access to abortions, the fact is people do not agree on the issue. A recent study by the Pew Research Center shows that divide over support for abortion is at an all-time high. Though evidence of a prior abortion may be relevant, in light of the great divide on the issue and the possibility of jurors being swayed in their analysis by an emotional response, it is difficult to conclude that prejudice to the plaintiff will not not substantially outweigh it the evidence’s utility.

There is no right to privacy that extends to the courtroom, but in this case, that may mean a plaintiff’s road to recovery is far more challenging.

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