Pfizer announced the recall of approximately 1 million packets of birth control pills on Tuesday, because some of the packages may not contain the right number of active pills. If you get pregnant because of faulty pills, do you have a case against the manufacturer?

Yes, in most states. The majority of U.S. courts recognize a tort called “unwanted conception” or “unwanted pregnancy,” but most cases involve tubal ligation or vasectomy rather than the pill. In such cases of botched sterilization, doctors don’t have a particularly good defense, because the procedure is extremely effective when performed correctly. The pill, by contrast, is only 98 to 99 percent effective, even when free of defects. So it’s hard to prove an unwanted pregnancy is due to a flawed pill. In addition, if a woman chooses to sue, the manufacturer can try to convince a jury that she didn’t take her pills on schedule. (Surgical sterilization requires no such vigilance by patients.) Lawsuits against makers of the pill aren’t unheard of, though. In September, a Georgia woman sued a birth control manufacturer for $5 million (PDF), claiming that the pills were packaged in the wrong order, with the placebos at the beginning of the cycle.

Pfizer has made any pregnant litigant’s case substantially easier by admitting to a possible mistake. But the company’s liability is likely to be relatively modest, because damages in wrongful pregnancy cases are usually limited to replacement contraception, the cost of prenatal care, labor and delivery expenses, and sometimes a small award for emotional distress. If the woman chooses to terminate the pregnancy, courts usually won’t force the defendant to pay for an abortion.

A mother can’t make the pill manufacturer pay for the costs of child rearing, such as food, clothing, or private school tuition, even though such expenses are by far the most significant economic consequence of wrongful conception. Judges aren’t comfortable viewing life as a form of damage and argue that the costs of raising a child are offset by the joys of parenting. (Some legal scholars criticize this logic, which ignores the fact that the woman was taking the pill to avoid parenting altogether.)

South Dakota doesn’t recognize the tort of wrongful conception, because of its similarity to a far more controversial set of claims known as “wrongful birth” and “wrongful life.” In the 1960s and 1970s, state courts began to award damages to parents who claimed they would have aborted their pregnancies had the obstetrician warned them of their fetus’s congenital defects. Damages in such cases sometimes ran into the millions, because of the long-term costs of caring for a severely disabled child. Abortion opponents protested, because they felt that the cases legitimized abortion; advocates for the disabled also objected (PDF), because they felt the rulings suggested that a disabled life is not worth living. Several state legislatures prohibited the claims by statute. While most were careful not to abolish the tort of wrongful conception, South Dakota went one step further, prohibiting any recovery for unwanted pregnancy.

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Explainer thanks Caitlin Borgmann of the CUNY School of Law and Nadia Sawicki of the Beazley Institute for Health at Loyola University Chicago.

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