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Policy: Law

Two fundamental problems with wrongful-birth suits

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Opinion,Health,Op-Eds,Abortion,First Amendment,Freedom of Religion,Law

Mississippi Republican Rep. Steven Palazzo is proposing a bill to prohibit the disturbing phenomena of "wrongful birth" and "wrongful life" suits.

In a wrongful birth suit, the parents claim that they were injured by the birth of their child; in particular, they wish they could have aborted their baby.

Typically, the claim arises from some disability the child has, and the parents blame their physician(s) for not alerting them to some test or test results that could have revealed the disability.

In a "wrongful life" suit, the child himself or herself claims to be injured by not having been aborted, for similar reasons.

The pro-life movement has long condemned such lawsuits as fundamentally incompatible with the sanctity of human life.

A child is a blessing, not an injury. Furthermore, treating life as a legal harm sends a deeply destructive message.

I want to mention two other reasons that wrongful birth suits are deleterious:

First, such suits set up perverse and harmful incentives. As with malpractice litigation in general, such lawsuits encourage pessimism from physicians.

No one gets sued when the patient does better than predicted; everyone celebrates. But if the doctor’s forecast turns out to be rosier than reality, the disappointed patient or family may look for someone to blame (and sue).

As a consequence, the liability-averse medical professional will err on the side of doom and gloom.

This, in turn, can have very real consequences in terms of, for example, families deciding to discontinue life support, or patients slipping into depression.

In the prenatal context, the same distorted incentives apply. If the physician warns that the baby potentially will suffer from disabilities, or worse ("Your child will probably never walk" or "This condition is incompatible with life"), but then it turns out that the baby is healthy or not as disabled as feared, the parents rejoice in their "miracle baby." No one gets sued.

But if the physician omits the "grim news" speech, or fails to alert parents to some test that just might reveal a problem, then any subsequent adverse condition the child may face can become the occasion for a lawsuit against the doctor.

Understandably, the savvy OB/GYN will err on the side of negativity. This has real consequences, as many parents will give up on their child or even abort the baby.

Second, wrongful death suits can threaten the First Amendment rights of medical providers.

Abortion is not an option for a pro-life physician because of the profound injustice of killing an innocent child.

Moreover, regardless of moral concerns, a physician may believe, based upon the substantial evidence of harms flowing from abortion, and the total dearth of evidence of any medical benefit to abortion, that abortion is simply bad medical practice.

For such practitioners, directing patients to the option of aborting would be tantamount to malpractice. Yet, the threat of a wrongful birth lawsuit would apply legal pressure to speak to patients in a way physicians could deem counterproductive.

In short, the looming punishment of damages in a wrongful birth suit coerces speech from the physician. Now, not all coerced speech is unconstitutional.

The whole notion of informed consent law is that physicians will be held liable for certain things they fail to say.

But that does not negate the fact that the physician will be pressured to sacrifice free speech to avoid legal liability. The First Amendment also protects the free exercise of religion.

An OB/GYN may have religious objections to pointing patients to abortion as an option. The fact that abortion is legal does not preclude such objections.

Having the risk of a wrongful death suit hanging over one’s head would pressure objecting physicians to mention abortion as an option.

If the OB/GYN fears that identifying non-treatable prenatal conditions might prompt the parents to abort, that physician’s objection to facilitating or occasioning an abortion could come with a hefty price tag in terms of legal damages.

Again, this may not mean such suits violate the free exercise clause of the First Amendment. Nevertheless, the cost to conscientious medical practice is real.

Wrongful birth and wrongful life lawsuits promote the toxic notion that some people are better off dead than disabled, and warp the physician/patient relationship by creating incentives toward pessimistic diagnoses.

Finally, these suits make it harder for pro-life physicians to practice. Abolition of wrongful birth and wrongful life suits has already happened in numerous states, and for good reason.

Walter M. Weber is senior litigation counsel at the American Center for Law and Justice.
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