Yeah, about that whole “allowing doctors to lie” thing. It’s bogus.

A young person sits in a wheelchair and wears a t-shirt that says “Disabled lives are worth living.”

There’s a lot of talk going on about proposed legislation that will, allegedly, make it legal for doctors lie to their patients. That is not what is happening. Since I happen to be a lawyer, allow me to explain what is going on.

WRONGFUL BIRTH. A cause of action may not
arise, and damages may not be awarded, on behalf of any person,
based on the claim that but for the act or omission of another, a
person would not have been permitted to have been born alive but
would have been aborted.

To understand the type of conduct being addressed by this law, let’s imagine a hypothetical family.

Jack and Jill have conceived a daughter, Sally, who is still in the womb. Sally has spina bifida, a condition that can cause paralysis of the legs and other serious symptoms. Jack and Jill do not know that Sally has spina bifida. They go to a prenatal appointment, and the doctor does not tell them that Sally has spina bifida. When Sally is born, Jack and Jill are stunned to learn that she has a serious disability, and furious at their doctor.

Suppose that Jack and Jill sue their doctor, claiming that if they had received a timely diagnosis for Sally, they could have pursued prenatal surgery that would have improved Sally’s condition. The legal harm is their lost opportunity to improve Sally’s condition. Such a lawsuit is not based on the claim that Sally “would not have been permitted to have been born alive but would have been aborted.” Accordingly, the lawsuit is allowed.

Conversely, suppose that Jack and Jill wanted to be parents, but had no particular interest in being Sally’s parents. If they had received the spina bifida diagnosis before she was born, they would have aborted her in order to “try again.” Under these circumstances, their claim would be a “wrongful birth” claim, based on the notion that Sally should be dead. That claim would be prohibited by SB 25.

You’ll notice that the reason for the doctor’s failure to deliver the diagnosis is completely immaterial. Wrongful birth lawsuits have nothing to do with whether or not a doctor lied. Whether the doctor simply failed to recognize the signs on a sonogram, or told an underling to relay the bad news but the underling forgot, or stayed silent to save Sally from abortion, or even lied and told Jack and Jill that Sally was perfectly healthy to avenge some petty personal grievance against them, it doesn’t matter. All that matters is the type of legal harm that the plaintiffs seek to remedy.

Here’s another example. Suppose Mallory receives a tubal ligation from a shoddy doctor. He does not perform the procedure correctly. He knows he’s no good at tubal ligations but he lies, assuring Mallory that all is well and there’s no need to use contraception. Mallory, to her shock, conceives a baby. She gives birth and decides to raise the child herself. She sues the doctor for medical malpractice and seeks the amount of her pregnancy and parenting expenses, arguing that she would not have incurred those expenses if he had done the tubal ligation correctly. This remains a cognizable claim under the Texas bill, because while it obviously implies that the child should not have been conceived, it does not imply that the child should have been aborted. This is a “wrongful conception” lawsuit, not a “wrongful birth” lawsuit.

The reason for banning wrongful birth lawsuits is articulated well by Jennifer Allmon, as quoted in the Texas Tribune:

We believe that a lawsuit that begins as its premise that “we should’ve had the opportunity to kill our disabled child” sends a terrible message to those disabled children in Texas. To hold a physician financially responsible for a disability he did not cause presumes a level of control over human development that physicians and parents simply do not have.

Given the nationwide scope of the disability rights movement, it should come as no surprise that Texas is not the first state to consider a ban on wrongful birth lawsuits. As of 2012 (if you can find a more current summary please let me know), 28 states permitted wrongful birth lawsuits, 9 states had explicitly banned them, 2 states were considering a ban, and the rest had no legal precedent.

In short: the abortion lobby’s posture that Texas SB 25 is some new and unique crusade to give doctors license to lie to women is nonsensical.