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April 2017 - Wrongful Birth
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Texas Legislature Contemplates Bill Eliminating Physician Liability For “Wrongful Birth”

by Vanessa C. Adriance, Co-Chair of WLALA’s Pro-Choice and Reproductive Rights Committee

WLALA’s Pro-Choice and Reproductive Rights Committee believes that it is important that members be aware of legislation that the Committee believes would undermine a woman’s constitutionally-protected reproductive rights.  In furtherance of that goal, this article is intended to share information regarding a bill that is currently under consideration by the Texas Legislature.  For those interested in reviewing the text of the bill itself, it is available publicly HERE.

On February 27, 2017, the Texas Legislature took a drastic step in attempting to curtail access to abortions, moving materially forward with a bill that would permit doctors to lie to their patients in an effort to prevent them from aborting fetuses with severe abnormalities.  Specifically, the bill (S.B. 25) seeks to eliminate the cause of action for “wrongful birth.”  In so doing, it eliminates one key type of liability for physicians who withhold information from patients about the health of their pregnancies, or who outright mislead pregnant women.   

The “wrongful birth” cause of action in Texas originated with the 1975 case of Jacobs v. Theimer.  (519 S.W.2d 846 (Tex. 1975).)  In that case, the plaintiff contracted rubella during the first trimester of her pregnancy and “subsequently gave birth to a child whose major organs were defective.”  (Id. at 847.)  She and her husband sued her physician, following his assurances that she had not had rubella.  By 1973, the family’s medical bills totaled more than $21,000.   Ms. Jacobs asserted in her complaint that had she known about her rubella and the harm it would inflict on her fetus that she would have terminated the pregnancy.  The Texas Supreme Court sided with the family, awarding “expenses reasonably necessary for the care and treatment of their child’s physical impairment.” (Id. at 850.)

Presently, parents may assert a wrongful birth claim against doctors who withhold or fail to provide information to a pregnant woman that would have led her to terminate her pregnancy.  If S.B. 25 becomes law, it would eliminate a key cause of action for parents seeking to hold doctors accountable for withholding information about such fetal abnormalities.  Opponents of the bill argue that S.B. 25 would give physicians a license to lie to their pregnant patients, telling them that a pregnancy is healthy when it is not.  They argue that a doctor who is opposed to abortion and who suspected that a pregnant patient would abort in the face of truthful information that a child had an abnormality could decide not to share this information with his or her patient, and could even affirmatively lie to the patient and tell her that her child is healthy and normal without being subject to liability on a claim for wrongful birth.

Thus, S.B. 25, if passed, could prevent pregnant women in Texas from accessing their constitutionally-protected right to abortion by allowing their doctors to decide not to share critical information that could have an impact on their decisions about whether or not to carry a pregnancy to term.  In other words, it allows doctors to substitute their own moral choices and views for those of the pregnant woman.

S.B. 25 also would have an impact on those who might choose to keep a pregnancy in the face of an abnormality.  If fully informed of the medical condition of the fetus, a patient might choose to keep an abnormal pregnancy, but could use the intervening months between diagnosis and delivery to prepare for the medical care that she and her baby might need and otherwise plan for the financial and emotional impacts of caring for a severely disabled child.  A doctor who chooses to withhold information about an anomaly deprives the mothers of disabled children of this much-needed preparation time. 

Supporters of S.B. 25 argue that its intent is to prevent discrimination against the disabled, and that the bill protects children with disabilities from having their parents argue in court they wish that child had not been born.  They further claim that the bill does not restrict access to abortion.  Supporters further argue that wrongful birth lawsuits hold physicians responsible for disabilities that they did not cause, and are thus fundamentally unfair to the doctors named as defendants in those cases.  The sponsor of the bill, Sen. Brandon Creighton, also says that even if S.B. 25 passes, doctors would still have to disclose medical information about pregnancies to families.  He further asserts that physicians can still be sued for negligence—they just would not be liable for delivering disabled children.

The majority of the bill’s sponsors also voted against Medicaid expansion in Texas. Should S.B. 25 pass, poor women will may find themselves forced to carry to term and raise severely disabled children in a state with few healthcare options for low income citizens, and no ability to sue their physician for wrongful birth. 

S.B. 25 passed the Texas Senate on March 21, 2017, and was sent to the Texas House of Representatives on March 22.

 

Vanessa Adriance is the WLALA Pro-Choice and Reproductive Rights Committee Co-Chair.  Ms. Adriance is an Associate Attorney at Gibson Dunn.

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