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Texas ‘wrongful birth’ bill would allow doctors to lie, critics say

The Texas Senate may soon decide on a bill that prevents parents from suing their doctor if their baby is born with a disability — a move abortion-rights supporters say will result in doctors lying to patients about the health of fetuses.

Supporters of the measure, Senate Bill 25, say it is needed to protect doctors from “wrongful birth” lawsuits and to protect the rights of the disabled.

“Senate Bill 25 will send a message that Texas does not believe that a life, in and of itself, is an injury in which parents need a damage payment,” said state Sen. Brandon Creighton, the bill’s author and a Republican from a town about 45 miles north of Houston.

The bill was brought before the Texas Senate Committee on State Affairs last week in a hearing with dramatic and emotional public debate.

Opponents said the bill would open the door to doctors to lying to patients about the health of their fetuses when they feel that the patient might seek an abortion if told that the fetus has a long-term health problem.

“SB 25 is a not-so-subtle way of giving medical personnel the opportunity to impose the religious beliefs on pregnant women by withholding information about the condition of their fetus and depriving them of making an informed decision about continuing with their pregnancy,” Margaret Johnson said on behalf of the League of Women Voters of Texas.

The issue of “wrongful birth” suits in Texas date to a 1975 case, Jacobs v. Theimer, decided by the state Supreme Court. Dortha Jean Jacobs contracted rubella during the first trimester of her pregnancy and “subsequently gave birth to a child whose major organs were defective,” according to Justia law website.

She and her husband sued Dr. Louis M. Theimer, saying he failed to diagnose the rubella and failed to inform them of the long-term risks it posed to the fetus. By 1973, the family’s medical bills totaled more than $21,000. The courts eventually sided with the family, awarding them “expenses reasonably necessary for the care and treatment of their child’s physical impairment.”

After describing the case and the precedent it set, Creighton said, “There are problems with this particular cause of action: First, it sends the message that there are births that are wrongful.

“There are no wrongful births,” he said.

Since the Jacobs case, such lawsuits have been rare. Even the bill’s author acknowledged that he wasn’t sure how many lawsuits had been filed over the years, but he maintained that the bill is necessary to protect doctors from being “liable for a disability in which they did not cause.”

‘This bill would be wrong’

Rachel Tittle, a freelance science writer from Austin, told the committee she learned too late in her pregnancy about the health of her fetus and was unable to seek experimental therapy that could have saved it.

“We would have gone to the ends of the Earth to give her a chance,” Tittle said. “But this bill takes that chance away.”

The bill, she said, could lead to “terrible unintended consequences that I believe all Texans, regardless of their politics, will find acceptable.”

“How do you picture it when a doctor decides to lie?” Tittle asked. “Would he smile in the ultrasound room and tell us everything was fine while he knew the baby’s heart was struggling to beat? Would he reassure me when I called and said the kicks were coming less and less frequently — that everything was fine?

“That would be wrong, and this bill would be wrong.”

The bill’s supporters shot back, saying those arguments were taking it out of context to create an uproar.

“This is a bill without a hidden agenda,” said Kyleen Wright, president of Texans for Life. “It is simply a bill that rights a wrong and protects doctors.”

Jennifer Allmon, executive director of the Texas Catholic Conferences of Bishops, said the bill “in no way restricts access to testing and in no way restricts access to abortion and in no way regulates abortion.”

“We believe that a lawsuit that begins as its premise that we should have had an opportunity to kill our disabled child sends a terrible message to those disabled children in Texas,” Allmon said.

Allmon reiterated points made by Creighton that a doctor could still be sued for malpractice or gross negligence.

“In other words, if a physician deliberately withheld information, then that physician could still be sued?” asked state Sen. Judith Zaffirini, a Democrat.

Allmon said those “remedies” would still be available.

When Allmon was done, Tittle jumped in, interrupting the proceeding’s protocol: “Can I ask a question?”

“Well, I don’t know if anyone will answer it, but you can ask it,” Republican committee Chairwoman Joan Huffman said, laughing.

“Don’t you think this creates a climate where doctors feel that they have the right to impose their own morality in these cases?” Tittle asked.

Huffman said she wasn’t sure whether “anyone wanted to answer that, but that’s not my understanding that is the intent of the bill.” Gross negligence and malpractice, she said, would be available remedies. “It’s just this specific cause of action,” Huffman said, “is not available.”

Creighton added that he believes current law leads to doctors promoting abortion: “There’s also concern without the bill being passed that physicians may advise in way just to prevent being sued personally. They may provide advice that is improper just to avoid litigation.”

‘Sad to be here’

Blake Rocap, policy adviser for NARAL Pro-Choice Texas, scolded the committee, saying he was a “little sad to be here.”

“We shouldn’t have to stand up and say it shouldn’t be policy for the state of Texas to excuse doctors from lying to their patients — and that’s what this bill does,” he said. “I don’t think it should be a policy of the state of Texas to pass the buck to a lot of doctors to commit medical malpractice without having to pay the damages they’ve caused.”

The harshest critique came from Waco resident Cheryl Foster: “SB 25 is a flagrant admission of guilt on the part of Texas state lawmakers in their efforts to control women’s lives. This Legislature has been on a mission to strip women of their reproductive rights, and this bill acknowledges that you do not want to be held accountable for your actions.”

Despite the objections, the committee voted unanimously to send the bill to the full Senate.