UPDATE, MARCH 22, 9:19 A.M.: The GOP-held Texas state senate on Tuesday passed SB 25. The measure moves to the house, where Republicans hold a 94-56 advantage.
Texas lawmakers have advanced a bill that would allow doctors to lie to pregnant patients by withholding information about fetal abnormalities.
SB 25, sponsored by state Sen. Brandon Creighton (R-Conroe), would outlaw “wrongful birth” lawsuits, in which parents sue sue their doctor for withholding information about potential fetal anomalies that would have led them to terminate a pregnancy rather than carry to term.
Rep. Ron Simmons (R-Carrollton), who prefiled a companion bill in the Texas House, sponsored a similar bill in the 2015 legislative session. The bill was passed by the house judiciary committee but was never brought to the floor for a vote.
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The senate committee on state affairs unanimously passed the measure after hearing public testimony on February 27.
Creighton testified during the hearing and took issue with the term “wrongful birth,” reported the Dallas Morning News. “Children born with disabilities ought to have the same rights as any abled person,” Creighton said. “Their rights are just as important as others.”
Opponents of the bill testified that it would prevent pregnant people from being fully informed about the health of their pregnancy and restrict access to abortion care.
Margaret Johnson, a member of the Texas League of Women Voters, told the committee that the bill would create an “unreasonable restriction on the constitutional right” of a pregnant person to make an informed decision about a pregnancy, reported the San Antonio Current.
“SB 25 is a not-so-subtle way to give medical personnel the opportunity to impose religious beliefs on women,” Johnson said.
Rachel Tittle, an Austin resident who unknowingly carried a fetus with severe abnormalities, told committee members that if she had been fully informed, she would have sought any number of medical treatments, reported the San Antonio Current. Tittle carried her pregnancy to term without knowing about the health issues, and the fetus was stillborn.
“It’s not a doctor’s right to manipulate the family by lying, and it is not doctor’s right to decide whether an experimental therapy is worth trying,” Tittle said. “There is always chance, there is always hope.”
Lt. Gov. Dan Patrick (R) made banning wrongful birth lawsuits a legislative priority for the 2017 legislative session. “The Senate will continue to fight to protect and value the lives of children born with disabilities by prohibiting this cause of action in Texas,” Patrick said.
Patrick laid the groundwork for this proposal in October 2015 when he directed the senate health and human services committee to examine wrongful birth and to study the legal cause of action’s “history in Texas, its effect on the practice of medicine, and its effect on children with disabilities and their families.”
As an analysis of the bill from Texas’ Senate Research Center notes, the “wrongful birth” cause of action was originally recognized in 1975 by the Texas Supreme Court, which ruled in favor of the parents of a child with disabilities in Jacobs v. Theimer. The doctor did not inform the plaintiff that she had contracted rubella, which is known to cause “severe birth defects in infants.”
Eleven states have banned wrongful birth as a cause of action for lawsuits: Arizona, Idaho, Indiana, Michigan, Minnesota, Missouri, North Carolina, North Dakota, Pennsylvania, South Dakota, and Utah. The Georgia Supreme Court struck down that state’s wrongful birth law in 1999.
Lawmakers in several other states have introduced bills to prohibit wrongful birth lawsuits.
Arizona lawmakers in 2012 passed a similar bill to prohibit wrongful birth lawsuits, though the legislation included exceptions in cases of an “intentional or grossly negligent act or omission.” Arizona State Sen. Nancy Barto (R-Phoenix) introduced the bill because she claimed wrongful birth lawsuits negatively affect children with disabilities. “True malpractice suits,” Barto said, would be allowed to proceed.
Cathi Herrod, president of the anti-choice Center for Arizona Policy, told the Arizona Capitol Times that she opposes wrongful birth lawsuits because they perpetuate the idea that “a disabled child is worth less than” a healthy child.
Jonathan Turley, professor at George Washington University Law School, said that while the term “wrongful birth” carries a “pejorative meaning,” these types of lawsuits are “fairly straightforward” tort claims.
“While some may object to the notion of abortion or aborting due to detection of defects, it is a lawful practice,” Turley wrote in 2012. “These doctors promised to perform tests to determine defects and did so with repeated acts of negligence. Negligent acts generally have both harm and damages.”
Texas’ SB 25 will now be sent to the full state senate where it awaits further action.