PHYSICIANS, "WRONGFUL LIFE" AND THE CONSTITUTION

Medicine and Health Rhode Island, Feb 2004 by Appel, Jacob M

Ever since the Supreme Court's 1973 Roe vs. Wade decision proclaimed a woman's fundamental right to terminate her pregnancy "subject to some limitations," the justices have grappled with the precise boundaries of this Constitutional grant. In the case of Planned Parenthood vs. Casey, they limited restrictions on pre-viability abortions to those circumstances in which the state's rules did not impose an "undue burden" on the pregnant woman's attempt to obtain an abortion. The requirements of informed written consent, a twenty-four hour waiting period and parental notification for minors have all been upheld; a spousal notification law, in contrast, has been struck down as unduly burdensome. Additionally, the Supreme Court has held that no federal obligation binds the state to facilitate or to promote abortions through such means as the provision of public funding or access to public medical institutions; in fact, the state may take steps actively to "encourage" an "alternative" decision. Among the ways the government may legally promote alternatives to abortion is by prohibiting physicians at publicly funded health clinics from mentioning the possibility of terminating a pregnancy. What remains undecided by the federal courts is the degree to which states may prevent doctors from providing pregnant women with certain types of medical information, such as the results of amniocentesis and ultrasonography, that would likely induce them to procure abortions. No state has yet enacted a law against fetal screening. However, nine states by statute-and twenty-eight others through court decisions-have altered their malpractice laws to protect physicians who negligently, or in some cases intentionally, provide a patient with insufficient or faulty information regarding the condition of her fetus. These reforms to state tort rules have been backed by an unlikely coalition of obstetricians, disability-rights advocates, anti-abortion activists and some insurance companies. They come as a backlash against the recent proliferation of "wrongful life" lawsuits.

The first court-sanctioned "wrongful life" claim occurred in California in 1982. Donna and James Turpin sued the physicians who had failed to diagnose their older daughter's genetic hearing disorder on behalf of their younger daughter, five year-old Joy, who had been bom deaf. TheTurpins argued that, had they been properly informed of the first child's condition, they would never have conceived or brought to term any further offspring; they convinced the California Supreme Court to award Joy the economic cost of her disability. Two years later, in New Jersey, seven year-old Peter Procanik's parents successfully argued on his behalf that they were denied the right to choose an abortion by their pediatrician's failure to diagnose Mrs. Procanik's German measles; as a result of congenital rubella syndrome, the boy was born with heart disease, eye lesions and other serious birth defects. Both the Turpins and the Procaniks claimed that the very lives of their children were wrongful. New Jersey and Pennsylvania "wrongful birth" cases had earlier granted parents recovery rights in similar situations. These "wrongful life" and "wrongful birth" cases differed considerably from the far more common and widely recognized "wrongful pregnancy" or "wrongful conception" suits in which parents claimed that they had conceived children as a result of defective contraception or negligent sterilization. They make sense only in the post-Roe context of reproductive choice, and implicitly rely upon abortion as a remedy. A "conservative" response rapidly ensued. Operating under the principle that increased information about the health status of a fetus might add to the number of abortions, and hoping to shield physicians who did not wish to provide such information, Utah enacted the nation's first Wrongful Life Act in 1983. The law declared: "A cause of action shall not arise, and damages shall 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." During the following two decades, legislatures approved similar acts in Idaho, Indiana, Minnesota, Missouri, North Carolina, North Dakota, and Pennsylvania. Yet it wasn't until 2002 that the Utah statute encountered a serious Constitutional challenge.

WOOD vs. UNIVERSITY OF UTAH MEDICAL CENTER

The plaintiffs in the case, Marie Wood and Terry Borman, sued the University of Utah Medical Center in Salt Lake City after their daughter, Mary Lorraine, was born with Down syndrome. The married couple had originally visited the Medical Center in January, 1998, when Marie first became pregnant. They were concerned that, because of her age, she might give birth to a child with a genetic disorder-and they "specifically sought advice" about such risks. Physicians at the Medical Center performed a series of tests on four occasions between January and March, but each time failed to reveal the results to Wood and Borman. They finally admitted to the couple that a March test indicated an 85% chance that the child would have Down syndrome, but then convinced them "not to worry because the tests often resulted in false positives" and led them to believe that their odds of having an afflicted child "were actually quite small." It was in reliance upon this blatantly false information that Wood and Borman decided to proceed with the delivery. They sought to recover damages for medical malpractice, but the district court dismissed their case in light of the proscriptions of the state's Wrongful Life Act. '!"he couple then appealed to the Utah Supreme Court on Constitutional grounds.