Tag Archive: India

The Selective-Sex Abortion Ban Debate in the United States

The debate over selective-sex abortion bans remains a contentious issue in state legislatures across the country. On January 16, 2012, Republicans in the Colorado state senate proposed outlawing abortions that are performed based on the sex of the fetus. The proposed legislation defines sex-based abortion as one “undertaken for purposes of eliminating an unborn child of an undesired sex.” Similar legislation has been considered in the past decade on both the national and state level. Arizona, Oklahoma, Pennsylvania, and Illinois have passed statutes banning the procedure in recent years. In May 2012, the U.S. House of Representatives rejected the Prenatal Nondiscrimination Act (PreNDA) that would have imposed fines and prison terms on doctors who perform sex-selective abortions. In a statement opposing the legislation, Representative Diana DeGette, a Democrat from Colorado, said, “I don’t support abortion for gender selection…I don’t know anyone who does. Maybe that’s because there is no problem in this country of abortion for gender selection.”

Supporters of legislative bans on selective-sex abortions argue that there is evidence of the practice in the U.S. among certain ethnic groups from countries where there is a traditional preference for male children, most notably India and China. U.S. Congressman Christopher Smith, a co-sponsor of the PreNDA, argues that the selective-sex abortion procedure “is part of a deliberate plan of population control” and “is the real war on women.” However, critics of the PreNDA argue that conservative Republicans are targeting a non-issue and have effectually created a staw man.

The selective-sex abortion ban debate implicates some serious constitutional and policy concerns. The chief concern is that the legislation would restrict women’s access to abortion by requiring women to disclose why they are choosing abortion. Similarly, there is a concern that the legislation intrudes on a woman’s relationship with her doctor. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the U.S. Supreme Court held that regulations that place a substantial burden on a woman’s right to have an abortion are unconstitutional. Requiring women to disclose why they are choosing abortion and the imposition of fines and prison terms on doctors would likely be deemed an undue burden on abortion rights. Furthermore, critics assert that legislation could lead to racial profiling of Asian-American women. The constitutional and policy concerns certainly seem to weigh against the selective-sex abortion bans.

Halloween, American Style

Halloween hijinks are afoot on the Bolloween episode of Outsourced, which aired on NBC Thursday October 28 at 9:30/8:30C. Boss Todd Dempsy (Ben Rappaport) is determined to expose his Indian coworkers to the American celebration of Halloween by staging a series of scary pranks with pal Charlie Davies (Diedrich Bader). This proves to be a huge mistake, however, as the Indian employees, who are completely unfamiliar with this American custom, are frightened out of their wits by the antics.

These poor, unsuspecting victims could potentially bring a civil cause of action for the tort of Intentional Infliction of Emotional Distress (IIED) in the United States. It is unclear, however, whether this tort is recognized in India. Although the law of India has its roots in English Common Law, tort law in India is far less developed than in other Common Law countries like England and the United States. While there is no code of tort law in India, some tort claims, such as defamation, negligence, and nuisance, are available legal theories of recovery. In addition, the scope of tort law in India is continuing to expand with the increasing industrialization of the country. See here.

In our legal system, IIED occurs when a person intentionally causes the severe emotional distress of another through extreme and outrageous conduct, and a plaintiff must establish the four elements of IIED in order to prevail and recover damages. First, the defendant must act intentionally or recklessly. Second, the conduct must be extreme and outrageous. Third, the conduct must be the cause of the fourth element, which is severe emotional distress. The Restatement (Second) of Torts defines “extreme and outrageous” conduct as that which “goes beyond all possible bounds of decency” and is “utterly intolerable in a civilized community.”   

Although the pranks would probably fall far short of this standard for “extreme and outrageous” conduct in the United States, the stunts might be sufficiently offensive in the Indian culture to satisfy the test. Probably the worst example is the trick played by Charlie when he bursts into Todd’s Halloween party like a crazed lunatic, yelling “It’s time to die!” and brandishing a running chainsaw. Charlie recklessly executes this prank, even after Todd warns him to give up the gags because of the effect they are having on the staff.  Charlie’s behavior, even by American standards, is extreme and outrageous, and causes the party-goers to suffer a serious fright as they scream and scatter in all directions.

The Indian employees seem to be more susceptible to emotional distress from scary pranks because of their unfamiliarity with the American Halloween traditions. Under the Eggshell Skull Rule, the defendant is liable even for the plaintiff’s unforeseeable and uncommon reactions. Charlie must take the staff as he finds them, and shoulder the consequences, even if their cultural sensitivities are more than he bargained for.

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