These States Should Ban Wrongful Birth Lawsuits

Since the Supreme Court overturned Roe v. Wade in the Dobbs decision, twenty states have enacted or implemented bans on abortion. To be consistent with their policy making, almost half of them now need to ban wrongful birth lawsuits.

The image above is from the New York Times, which is tracking state abortion laws. Currently there are seventeen states that have laws banning abortion and seven that ban abortion after six weeks or later (with some states having both laws). These laws are the expression of those states’ representative elected officials that abortion should not be allowed in their states. Yet, while eleven of these states have already banned wrongful birth claims, nine of them permit these odious lawsuits. They are:

• Alabama
• Arizona
• Louisiana
• South Carolina
• South Dakota
• Texas
• West Virginia
• Wisconsin
• Wyoming

These nine states should enact laws banning wrongful birth lawsuits to be consistent with their laws banning abortion.

Wrongful Birth

I have written previously, and at length, about wrongful birth claims. To summarize, they track the standard four elements of a negligence claim:

1. There is a duty, established by ACOG medical guidelines, for obstetricians to offer prenatal genetic testing to all of their patients, with the corresponding duty that those test results be accurately relayed to the patients;
2. There is a breach of that duty, either by the OB failing to offer prenatal genetic testing or the OB or the laboratory incorrectly relaying the results of that testing;
3. The breach of the duty proximately caused by denying the expectant mother the opportunity to exercise her reproductive autonomy and have an abortion; and,
4. The breach caused the patient injury, typically cited as the birth of a child with a disability and the increased costs associated or the injury to the patient’s autonomy by denying her the opportunity to have an abortion.

I’ll leave it to the multiple links introducing this section for those interested in more detailed analysis. But I think everyone can see where the breakdown occurs in the supposed logic of these claims if a state bans abortion.

The Need for Legislation Banning Wrongful Birth

In those states that have banned abortion, they have knocked out element 3, causation, and element 4, in those states that define the injury as denying a right to an abortion. If the state lawmakers have decided abortion should not be permitted in their state (or permitted by the time prenatal testing can return results, always beyond six weeks and often beyond 15 weeks), then the denial of the right to an abortion should not be recognized as the proximate cause of harm or the harm itself.

Yet, with twenty states banning abortion, that means thirty still permit it. It is not difficult to foresee a judge ruling that parents in those states with abortion bans were nonetheless injured by not being able to get an abortion by traveling to the other states that allow abortion. Indeed, the Supreme Court had previously ruled that restrictions that could result in longer travel is not an undue burden when it recognized a constitutional right to an abortion (more on that here).

Hence why state legislatures should follow the steps of other states that have enacted laws banning wrongful birth claims. Just as the representatives find a compelling state interest in expressing their opposition to abortion, they should similarly state through enacted legislation that their states do not recognize live born children as a “damage” and particularly where the claimed breach concerning prenatal testing had nothing to do with causing the child’s disability.

The first recommendation by ACOG to offer prenatal testing was prompted by a wrongful birth lawsuit. Unfortunately, as a result, physicians have since been trained to offer prenatal genetic testing not out of respect for the expectant mother’s autonomy but out of a fear of being sued–even when they practice in states that have never recognized wrongful birth claims. The result of this defensive practice of medicine is testing being forced on patients, without adequate informed consent, an emphasis on aborting following a positive test result to avoid possible legal liability, and the unnecessary driving up of public and private insurer costs for tests that if adequately counseled may have never been ordered.

The nine states listed above should be consistent in their policy making and pass laws banning wrongful birth lawsuits. If you agree, I hope you will reach out to your state representative or senator and share this post with them.

For a listing of where your state’s position is regarding wrongful birth claims, see this helpful resource here.