A Kansas law prohibiting lawsuits based on “wrongful birth” claims is constitutional, the Kansas Court of Appeals ruled Friday.
The measure, which Gov. Sam Brownback signed into law in 2013, protects physicians from malpractice suits if they withhold or fail to provide information about fetal abnormalities that might lead the mother to get an abortion.
The court ruled in a case brought by Alysia R. Tillman and Storm Fleetwood, whose daughter was born with severe brain defects. They sued their physician, Katherine A. Goodpasture, claiming her failure to make a correct diagnosis denied them the right to make an informed decision on whether to terminate the pregnancy.
The couple argued that the 2013 law violated their right to a jury trial under the Kansas Constitution. The trial court disagreed and threw the case out.
In upholding the trial court, the appeals court pointed out there was no right to sue for wrongful birth in 1859 when the Kansas Constitution was adopted. And, it said, the Constitution’s right to a jury trial only applies to claims that existed at that time.
“We are duty bound to interpret a statute as being constitutional, if possible, to maintain the Legislature’s apparent intent,” a three-judge panel of the court ruled in an opinion written by Judge Kim R. Schroeder.
The Kansas Legislature enacted the 2013 statute 23 years after the Kansas Supreme Court, in a case called Arche v. United States of America, recognized wrongful birth as a legal claim.
Tillman and Fleetwood tried to argue that the Supreme Court merely recognized a form of negligence, a legal claim that did exist in 1859. But in its decision, the Kansas Court of Appeals disagreed, saying that the Supreme Court had established a new claim.
Tillman’s and Fleetwood’s attorneys could not be reached for comment. A spokeswoman for Kansas Attorney General Derek Schmidt, who intervened in the case to defend the law, did not return a phone call and email seeking comment.
Kansas is one of about a dozen states that have passed laws protecting doctors who don’t give women all available information about their pregnancies. Another 25 states allow doctors to be sued for wrongful births.
A Texas bill that would have prohibited wrongful birth actions failed to pass last year after running into opposition from abortion-rights supporters. They claimed the law could induce doctors morally opposed to abortion to lie to their patients about the health of their fetuses.
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies