Confronting a New Obstacle to Reproductive Choice: Encouraging the Development of RU-486 through Reform of Products Liability Law


The recent medical discovery of the abortifacient RU-4861 has the potential to promote greater reproductive freedom for women by making abortions safer, easier, less traumatic and less expensive. Known controversially as the “abortion pill,” its developer calls RU-486 a “contragestive.” Others have referred to it as an “implantation inhibitor,”‘ and a “post-coital contraceptive.” The pill works by preventing the uterus from receiving progesterone, a hormone that is naturally secreted after fertilization to prepare the uterine lining for implantation of the fertilized ovum and to sustain that implantation. Without progesterone, the uterine lining breaks down and is expelled, as in normal menstruation.

RU-486, however, has yet to be developed for use in the United States. There are a number of factors preventing such development. First, there has been such intense opposition to the drug by anti-choice groups that the French manufacturer of RU-486, Roussel-Uclaf, has refused to license the drug to other companies or to market the drug in the United States out of fear of boycotts by these groups. Another factor affecting the drug’s development in this country, and the focus of this Note, is the potential liability of those manufacturing and marketing the drug should RU-486 prove unsafe. AlthoughRoussel-Uclaf currently has no plans to license the drug to other companies, products liability law inevitably will have an impact on the development of the drug if and when it decides to do so.

Underlying the concern expressed in this Note about the obstacles facing the manufacture of RU-486 is the belief that unless women themselves are afforded the choice whether and when to have children, it will be impossible for them to meaningfully control their own lives or participate fully in society. Legal, safe, and affordable abortions, the availability of which could be facilitated through introduction of RU-486, are necessary to provide that control. Women choose to have abortions for many reasons. Many women become pregnant because of inadequate birth control methods and choose not to carry a child to term. Many women may feel compelled to end a pregnancy because of economic or personal circumstances. Still others may wish to end a pregnancy that was the result of rape, incest, or another form of the sexual coercion that is prevalent in our society. Regardless of the reason underlying a woman’s decision to have an abortion, her choice must be respected in any society that claims to value autonomy of conscience.

At present, the vast majority of abortions performed in the United States are done through vacuum suction which is known as aspiration. While this procedure is relatively safe, many women who have abortions suffer from complications such as infection, perforation of the uterus, hemorrhage and anesthesia-related problems. In addition, Congress has denied federal funding for abortions, and only thirteen states provide public funding for abortions. As a consequence, millions of women in the United States today–especially those who are of color, young, rural and/or poor–do not have access to safe or affordable abortions. Women who cannot afford to pay for abortions are frequently forced to seek unregulated and, thus, illegal abortions, which are often dangerous and sometimes deadly. Those who fear sufficiently the physical and psychological effects of abortion, or the presence of abortion protesters at a clinic, are forced to bring unwanted children into the world.

This Note examines ways to limit the potentially excessive liability of would-be manufacturers of RU-486 through the adoption of various legal reforms in order to encourage development of the drug. While this Note focuses on protecting manufacturers from excessive liability, this focus does not stem from concern for the plight of manufacturers, but from concern for the plight of women who are denied access to this important drug. Specifically, this Note analyzes the uniform products liability reform bill now before Congress, explores the probable and undesirable effects of the passage of such a bill on the development of RU-486 in the United States, and contemplates the rea-sons that the bill is unlikely to pass in the foreseeable future. This Note then examines the federal regulatory approach to tort reform and concludes that, although such an approach might foster corporate development of RU-486, adoption of any of the proposed regulatory schemes would nevertheless be unwise. Finally, this Note explores the various ways that a no-fault tort scheme could be adopted with respect to the manufacture, development, and use of RU-486. It concludes that the best approach would be the establishment of a neo-no-fault program, either privately adopted or Congressionally mandated, that, while requiring the informed consent of any woman wishing to take the drug, would both provide complete and expeditious compensation to potential victims and protect private corporations from the arbitrary imposition of liability.

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