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Kansas Court Hears Arguments Over 'Wrongful Birth' Law

Bloomsberries, flickr Creative Commons

The Kansas Supreme Court seemed worried Wednesday about the proper roles of the Legislature and courts as it wrestled with whether a state statute that prohibits lawsuits based on "wrongful birth" claims is constitutional.

Justices heard oral arguments via Zoom on whether the parents of a disabled child have a right to a trial on their malpractice claims. A lower appeals court had earlier held that the statute signed into law by then-Gov. Sam Brownback in 2013 protects physicians from malpractice suits if they fail to provide information about fetal abnormalities that might cause the mother to get an abortion.

The parents' attorney, Lynn Johnson, argued the case was an action for the recovery of damages for negligent injury under common law that had evolved based on advances of technology and a recognition of a woman's reproductive rights.

"So the Legislature cannot, simply because it doesn't like abortion, simply cannot step in and deprive these folks and others similarly situated of their right to remedy ... by a trial by jury of whether the doctor was negligent and whether that negligence ultimately caused their monetary damages," Johnson said.

Alysia Tillman gave birth in May 2014 to a baby girl with a severe brain abnormality that left her permanently disabled and unable to ever perform "activities of daily living." Months before the birth, the doctor performed an ultrasound and told the parents it showed a healthy female fetus.

In their petition to the state's highest court, Tillman and the baby's father argued that they would have chosen to terminate the pregnancy had they received an accurate interpretation of the ultrasound. The child was diagnosed with schizencephaly, a rare birth defect in the cerebral hemispheres of the brain.

Tillman and Storm Fleetwood sued their doctor, claiming Dr. Katherine Goodpasture's failure to make a correct diagnosis denied them the right to make an informed decision on whether to end the pregnancy. Kansas Attorney General Derek Schmidt subsequently intervened in the case to defend the statute.

The doctor's attorney, Jacob Peterson, told the court that this is something entirely different than a traditional negligence lawsuit, saying "it seems somewhat crass and somewhat wrong" to try to award damages because "the result is the existence of this child, this living being."

Peterson contended the parents wanted to have specific child, they just didn't want to have the specific fetus that was in the womb.

"That does implicate certain matters of public policy as the Kansas Legislature has articulated on numerous times they believe that, and the people of Kansas believe, that life begins at conception," he said.

Kansas Deputy Solicitor General Brant Laue also argued the legislative branch has the primary authority to determine what injuries are compensated.

The court took the matter under advisement after listening to the arguments.

Besides Kansas, a dozen other states have similar laws: Arizona, Arkansas, Idaho, Indiana, Michigan, Minnesota, Missouri, Montana, North Dakota, Oklahoma, Pennsylvania, and South Dakota, according to the Guttmacher Institute, a research organization that supports reproductive rights.

The Guttmacher Institute contends these laws are part of "the anti-abortion strategy."

"False and misleading information is a long-standing strategy employed by abortion opponents, whether it is through a wrongful life statute or through state-mandated abortion counseling, they have the same goal of denying full information to patients as a way to force the continuation of a pregnancy," Elizabeth Nash, a public policy associate at Guttmacher, said in an email.

Nash said she was unaware of any wrongful birth state laws that have been specifically struck down, although there are such cases in some of these states.

Last year, the Kansas Supreme Court declared that the state constitution protects abortion rights when it blocked a state law banning a a common method for ending pregnancies.

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