A Kansas couple want the state Supreme Court to review a law banning lawsuits against physicians who don’t tell parents about their unborn child’s birth defects so they can end the pregnancy.
Lawyers for Alysia Tillman and Storm Fleetwood are asking the state’s highest court to reconsider a recent appeals court decision upholding a 2013 law that banned legal claims for “wrongful birth.”
In a wrongful birth lawsuit, parents claim a physician failed to warn them of the risk of giving birth to a child with abnormalities so they could decide whether to abort the pregnancy.
It’s a very rare type of case. Court records indicate there may only have been a few as three wrongful birth cases heard in the Kansas courts in the last 30 years.
Five years ago, the Legislature barred civil claims from wrongful birth in response to a 1990 state Supreme Court case that found it as a cause of action.
A state appeals court found in June that the statute banning wrongful birth suits was constitutional because the right to such a lawsuit did not exist when the state constitution was drafted in 1859.
The case centers on Tillman and Fleetwood, whose daughter was born in 2014 with a brain abnormality called schizencephaly, which left her with severe neurological, cognitive and physical disabilities. Her disabilities were severe enough that she will never be able to live without special medical care, court documents show.
Tillman and Fleetwood argued their doctor’s failure to diagnose the structural abnormalities and defects in the fetus’ brain denied them the right to make an informed decision on whether to have an abortion.
They are now seeking to have the Supreme Court overturn two lower-court decisions that have gone in favor of the doctor in the case.
Their lawyers argued that the appeals court erred in its decision because a wrongful birth action is a form of medical malpractice that’s covered by the state constitution.
“This is nothing more than a medical negligence cause of action that is recognized based upon the advent of the ability to recognize fetal abnormalities through sonograms and other tests and the right of the mother to have the pregnancy terminated because of Roe v. Wade,” said Lynn Johnson, the lawyer for the parents.
The lawyers for the parents contend that the wrongful birth lawsuit ban violates the state constitution because it denies the parents the right to a recovery of damages and the right to a trial by jury.
“We believe and are asserting that the statute that prohibits a wrongful birth cause of action is unconstitutional because it denies our client a remedy by due course of law … or the right of trial by jury,” Johnson said.
Attorney General Derek Schmidt intervened in the case. He has asked the Supreme Court to deny the plaintiffs’ request for a hearing to review the law.
“The Legislature’s public policy decision to eliminate wrongful birth as a cause of action was an important one,” the attorney general’s office argues in its brief.
“The district court and the unanimous court of appeals panel applied this court’s settled precedents consistent with Kansas public policy that every life is valuable,” the attorney general argued. “Plaintiffs have given no good reason for the court to grant review and upend settled law.”
Fourteen states now have wrongful birth statutes on the books. Iowa banned wrongful birth lawsuits this year after the state Supreme Court found for the first time that a personal injury claim for wrongful birth was recognized in law. Texas lawmakers unsuccessfully tried to ban wrongful birth lawsuits last year.
When the Kansas law was debated back in 2013, it drew support from Kansans for Life and the Kansas Catholic Conference. The bill was opposed by the National Organization for Women and the American Civil Liberties Union.
Kansans for Life said the law banning wrongful birth suits would extend civil rights to the unborn. The group contended wrongful birth lawsuits potentially reward families who want an abortion.
“Many families cope with the challenges of disabling conditions; yet states that allow wrongful birth suits allow juries to give jackpot awards only to those plaintiffs who are willing to stand up in court and say, ‘My child should have been aborted,’ ” Kansans for Life Lobbyist Kathy Ostrowski said in her written testimony.
The ACLU, meanwhile, argued that the issue should be left up to the justice system to decide. The group argued that the law would encourage physicians to keep information from their patients.
“Because doctors’ responsibility to provide information to their patients has been regulated in large part by the reality of litigation, (the law’s) legislative manipulation of health information inflicts a heavy penalty on pregnant women by favoring the doctor’s judgment and power over the woman’s right to make an informed decision.”
