The Legal Claims of Wrongful Birth vs. the Right to Lie Over Abortion
When anti-abortion activists defend mandatory ultrasound rules, they often speak about a pregnant woman’s right to know. “Women have a right to know all the available medical and legal information surrounding the abortion decision before giving legally effective informed consent,” said Virginia Gov. Bob McDonnell when he signed such a rule into law last week.
In some states, though, anti-abortion activists are pushing legislation to protect doctors who don’t give women all available information about their pregnancies. Arizona and Kansas are considering bills that would ban lawsuits in cases where doctors fail to warn their patients about birth defects. The Arizona law, which is similar to legislation that exists in a handful of other states, would apply only when doctors make a mistake. But the Kansas provision, part of a sweeping, 69-page anti-abortion bill, would allow physicians to lie to women who might otherwise terminate their pregnancies. It is similar to a law in Oklahoma passed two years ago—in concert, ironically, with mandatory ultrasound legislation.
We’ll likely see more such laws in the future, spurred in part by widespread conservative outrage over a recent so-called wrongful-birth case in Oregon. Indeed, to understand the reasoning behind the push to disavow a woman’s right to know about her pregnancy in certain circumstances, you have to understand the tricky, ethically ambiguous legal concept of wrongful birth. A type of legal claim, it allows parents to sue when they aren’t given information about a pregnancy that would have caused them to abort. In the Oregon case, Ariel and Deborah Levy sued after a botched chorionic villus sampling test failed to reveal that their daughter had Down syndrome, something they learned only after she was born. On Friday, a jury awarded them $2.9 million.