Abortion creates a critical ethical and legal distinction between pre- and postconception care. Abortion is ethically abhorrent to a substantial minority of persons in the United States. (Some antiabortion groups also oppose the use of contraception, but contraception has become so widely accepted that its use generates no moral outrage comparable to abortion.) Even persons who support a woman’s right to choose to terminate an unwanted pregnancy are not necessarily proabortion but see it as a necessary evil. As a matter of public policy and individual patient welfare, it is preferable that reproductive decisions be made before conception.

In a failure of preconception counseling, the parents must prove that had they been properly informed of the risk of having an injured child, they would have chosen not to conceive the child. In contrast, when the information is sought after conception, the parents must convince the jury that they would have aborted the fetus had they known of the risk. Juries are clearly more sympathetic to decisions not to conceive than to decisions to abort. As a result, they are willing to believe that a couple would choose not to conceive based on the risk of minor conditions such as congenital deafness. Conversely, it is be much more difficult to convince a jury that the same condition, discovered postconception, would justify an abortion.