Supreme Court upholds Kansas ‘wrongful birth’ law

Photo credit: A.D. Modlin

The Kansas Supreme Court on Friday upheld a state law  abolishing medical malpractice claims when a physician fails to warn parents of the risk of giving birth to a child with abnormalities so it can be aborted.

A divided Supreme Court upheld lower-court rulings that dismissed a “wrongful birth” lawsuit brought against a physician who didn’t inform parents about their unborn child’s birth defects so they could end the pregnancy.

A dissenting opinion suggested the court departed from its landmark ruling that the Kansas Constitution protects an  individual’s right to make decisions regarding their body, health and family life, including the right to an abortion.

Lawyers for Alysia Tillman and Storm Fleetwood asked 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.

The case centered 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.

Eight 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 that the statute banning wrongful birth lawsuits was constitutional because the right to such a lawsuit did not exist when the state constitution was drafted in 1859 but changed after the 1990 court decision.

Writing for the majority, Justice Dan Biles said the constitutional right to a jury trial didn’t keep  the Legislature from eliminating the right to bring legal action in the case of  a “wrongful birth.”

While state constitutional guarantees typically limit the Legislature’s authority to tweak  civil causes of action recognized when the state constitution was adopted, this was not the situation in this case, the court ruled.

The Supreme Court held these claims did not fall into that category because they had unique factual requirements for the injury to be actionable and required special rules for calculating damages.

“The wrongful birth cause of action is not just a different application of the traditional medical malpractice tort,” the court’s majority ruled. “It is a new species of malpractice action first recognized in 1990.”

Justice Caleb Stegall authored a concurring opinion arguing that the 1990 decision recognizing wrongful birth as a viable cause of action should be overturned.

“The Kansas Supreme Court said quite loudly that under Kansas law some lives are worth more than others,” Stegall wrote.

“And worse, that the lost opportunity to end some lives is actually worth money in a civil lawsuit,” he wrote.

“I cannot let such precedent — even precedent that has become a dead letter — stand without expressing in the strongest possible terms my condemnation of it.”

Chief Justice Marla Luckert dissented, arguing medical malpractice actions existed when the state constitution was adopted in 1859, so the 2013 law violated the plaintiffs’ right to a jury trial.

Justice Eric Rosen joined the chief justice’s dissent, arguing the existence of an injury should be sufficient to protect a cause of action from being abolished.

“The majority’s hyper-focus on the differences between the medical negligence
action here and medical negligence actions in 1859 has caused it to lose sight of its
question: Would this cause of action be recognized as justiciable in 1859?

“In other words, would this set of facts give rise to a basis for suing in 1859? My answer is yes.”

Rosen said the decision “would immunize those who would willingly withhold information from a pregnant woman in an effort to prevent the patient from choosing abortion.”

Rosen said he could not reconcile the court’s decision with the court’s previous landmark ruling, which found that abortion is an emebedded right in the state constitution.

Lynn Johnson is the Kansas City lawyer who represented the parents.

He said the court’s decision shields specialty physicians from medical malpractice claims, namely for prenatal care and genetic counseling.

“This means this particular area of medical practice, which has evolved over the years to prevent the birth of really, severely disabled and handicapped children, now have absolute immunity and can never be held accountable.

“Not only would this immunize those who would willingly withhold information, but those who are negligent,” he said.

Kansas Attorney General Derek Schmidt praised the court’s decision.

“In Kansas, the birth of a child should be cause for celebration, not for the law to award damages because the child was ‘wrongfully’ born.”

There are now 14 states, including Kansas, that have “wrongful birth statutes on the books. They include Missouri and Iowa as well.

Iowa banned wrongful birth lawsuits in 2018 after that state’s Supreme Court found that a personal injury claim for wrongful birth was recognized in law.

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 at that time 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.”