Boy loses Supreme Court appeal in abortion case



WASHINGTON (AP)—The Supreme Court on Monday turned down the appeal of a Wisconsin boy who won, and then lost, $1.1 million from the doctor who tried to abort him 14 years ago.

The court, without comment, left intact a ruling that said the boy should not have been allowed to sue because his mother had consented to the abortion.

Linda Noie was six to eight weeks pregnant when on Jan. 10, 1979, she underwent an abortion performed by Dr. Benjamin Victoria at the Fox Valley Reproductive Health Care Services clinic.

Ms. Noie later learned the abortion had not been successful, and on Sept. 18 of that year she gave birth to Joshua Vandervelden.

Ten years later, Joshua sued the doctor. His lawsuit, filed in a state court in Milwaukee, accused Benjamin of committing a battery—defined as an unlawful and intentional use of force resulting in physical harm.

Joshua’s lawsuit contended that the unsuccessful abortion caused a loss of hearing in his left ear.

A state judge refused to dismiss the lawsuit, and a jury awarded Joshua $1.1 million in damages.

But a state appeals court threw out the award. It ruled that in cases in which a woman consents to abort a fetus that cannot live outside the womb, ‘‘a physician may not be held liable for a battery to the unborn fetus.’‘

‘‘We know of no court that has found a fetus of less than three months gestational age to be considered a person entitled to legal protection,’‘ the appeals court said.

Its ruling said a doctor could be sued for negligence in such cases.

The Wisconsin Supreme Court refused to hear Joshua’s appeal last June.

In the appeal acted on today, Joshua’s lawyer said the boy’s rights came into existence ‘‘at that point in time that the abortion procedure was over and (he) had survived its trauma.’‘

In response, lawyers for Benjamin said Joshua’s lawsuit had ‘‘asked the courts of Wisconsin to adopt a theory of tort liability that simply made no sense.’‘

The case is Vandervelden vs. Victoria, 93-379.