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TOPEKA, Kan. (Legal Newsline) - A law prohibiting “wrongful birth” lawsuits by parents who claim they would have aborted a disabled fetus had they known of its condition doesn’t violate the Kansas Constitution, the state’s high court ruled, because the cause of action was created by the Kansas Supreme Court in 1990.
Citing a rule that drew heavy criticism from several justices, the Kansas Supreme Court said the state constitutional guarantee of a right to trial by jury in civil cases only applies to cases that would have been allowed under the common law when the Kansas Constitution was adopted in 1859.
“The wrongful birth cause of action is not just a different application of the traditional medical malpractice tort, it is a new species of malpractice action first recognized in 1990,” the majority ruled in an April 30 decision written by Justice Dan Biles.
The Kansas Supreme Court declared parents had a right to sue for wrongful birth under Kansas law in a decision called Arche v. U.S., answering a question posed by a federal court. The court put several limitations on this newly-created cause of action, including barring parents from collecting the normal costs of childrearing and prohibiting damages for emotional distress.
In 2013 the Republican-controlled Kansas legislature outlawed wrongful birth lawsuits with a statute prohibiting courts from awarding damages to parents over claims they were prevented from aborting a disabled fetus.
The Kansas Supreme Court considered the constitutionality of the statute in a case stemming from the pregnancy of Alysia R. Tillman, who sought prenatal care from Dr. Katherine A. Goodpasture in 2013. Late in the pregnancy, Goodpasture detected the baby had schizencephaly, a developmental brain birth defect. The baby girl was born a few days later with severe neurological impairments that will require lifetime care.
The baby’s parents sued Goodpasture, claiming the doctor failed to tell them about the abnormalities in time for them to make an informed choice to abort the fetus. The trial court dismissed their case, concluding it was barred by the 2013 law. The trial court also found the statute was constitutional because the Kansas Bill of Rights only protects civil actions that were viable at the Constitution’s adoption in 1859 and the Kansas Supreme Court had created the wrongful birth cause of action in 1990.
The parents appealed, arguing the law violated their constitutional right to a jury trial. The appeals court upheld the dismissal, and they appealed again to the Kansas Supreme Court, where they lost again.
Rather than overrule Arche, the majority ruled that it created a new form of negligence lawsuit that didn’t exist under common law back in 1859. While the wrongful birth claim resembles traditional medical malpractice, the majority ruled, it is fundamentally different because the Kansas Supreme Court limited it to cases involving children born with “gross defects” and severely limited the damages parents could collect.
“The conclusion seems obvious that the Arche court really created a new legal wrong that required a measure of damages tailored to its unique circumstances,” the majority ruled.
Justice Caleb Stegall concurred but said the court should have gone further and overruled “one of the worst decisions in our court’s history” that steers perilously close to encouraging eugenics. He said Arche “sits, Korematsu-like, as an ugly and as-yet unrepudiated black mark in our jurisprudential past,” referring to Korematsu v. U.S., the 1944 U.S. Supreme Court decision that upheld the internment of Japanese-Americans in World War II. The Supreme Court didn’t explicitly overrule it until 2018.
“The overwhelming majority of courts have recognized that the birth of a healthy child can never be an `injury’ compensable at law,” the dissenting judge wrote.
“In Arche, the Kansas Supreme Court said quite loudly that under Kansas law, some lives are worth more than others,” he wrote. “And worse, that the lost opportunity to end some lives is actually worth money in a civil lawsuit.”
Justice Stegall also found common ground with dissenters, however, who said the court shouldn’t have declared Arche created a new cause of action that didn’t exist in 1859. He criticized the court for leaving common law “fossilized in constitutional sediment.”
Chief Justice Marla Luckert dissented, saying the case was “a classic medical malpractice action” over an alleged failure to provide the standard of care. Justice Eric Rosen also dissented, criticizing Justice Stegall for describing the compensation offered in Arche as equivalent to discrimination against the disabled. The injury in a wrongful birth case isn’t the child’s disability, Justice Rosen said, but the fact the parents were denied the information they needed to make an informed choice.
“Rather than igniting a fire that spawns a systematic practice of selective human breeding, I believe that recognizing the injury in cases like the one alleged here simply ensures that patients receive competent medical care or compensation for proven damages,” he wrote.