Category Archives: Feminism

Wrongful birth lawsuits are not about women’s rights

There’s always been a bit of a tension between the pro-choice and disability rights communities regarding the decision to abort fetuses with disabilities, and it’s coming to a head now that the Arizona senate has passed a bill banning “wrongful birth” lawsuits. Many left-leaning sources have characterized this legislation as protecting doctors who intentionally and paternalistically withhold disability-related information from expectant mothers because they think that it will prevent an abortion (see, e.g., HuffPo; Interestingly, Mother Jones has been the voice of reason here, noting that the bill doesn’t prevent lawsuits based on intentional withholding of information). Huffington Post and addictinginfo have also suggested that this bill will make it harder for women to sue for personal injury due to doctors withholding information about ectopic pregnancies.

They need to calm the heck down. There are some very serious threats to women’s health out there, including the ongoing and completely ridiculous debate over whether all employer health plans should be required to cover hormonal contraception (duh; they should). Threats to the ability to bring “wrongful birth” lawsuits are not something feminists should worry about. In fact, there are very good disability-rights-based reasons to support this bill.

First let’s look at the text of the bill. It’s very simple:

12-718.  Civil liability; wrongful birth, life or conception claims; application

A.  A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.

B.  A person is not liable for damages in any civil action for wrongful life based on a claim that, but for an act or omission of the defendant, the person bringing the action would not or should not have been born.

C.  This section applies to any claim regardless of whether the child is born healthy or with a birth defect or other adverse medical condition.

D.  This section does not apply to any civil action for damages for an intentional or grossly negligent act or omission, including an act or omission that violates a criminal law.END_STATUTE

First note that this bill can’t possibly restrict lawsuits over ectopic pregnancies because it only applies to lawsuits in which a child has been born and allegedly should have been aborted or otherwise not brought to term. Ectopic pregnancies are automatically fatal to the embryo if nature is allowed to take its course; as a result, there is no way that a child can be born from an ectopic pregnancy as a result of the doctor’s failure to tell the mother she had one. Women would pretty clearly be able to sue for personal injury based on failure to diagnose an ectopic pregnancy.

Second, it’s important to know some background about “wrongful life” and “wrongful birth” lawsuits. They’re essentially medical malpractice lawsuits – that is, lawsuits based on negligent conduct, not intentional conduct by a doctor aimed at preventing an abortion – in which the negligent conduct by the doctor is failure to detect that a fetus has a disability and inform the mother. The mother must prove that, had she known of the child’s disability, she would have had an abortion, and the fact that she did not have an abortion based on the child’s disability harmed her (or, in “wrongful life” lawsuits, harmed the child). There may be some situations in which the lawsuit is based on negligent genetic counseling that would have prevented the child from having been conceived in the first place, but that’s not the archetypical case.

Even if one is in favor of these causes of action existing, the Arizona bill is far from radical. About half of the states in the U.S. already don’t recognize “wrongful life” or “wrongful birth” as valid causes of action; many never have.

But there are also good reasons to not want them to exist. Disability law scholars have long criticized these types of lawsuit (see, e.g., this article from Harvard’s Civil Rights-Civil Liberties Law Review). “Wrongful life” suits are particularly indefensible from a disability rights standpoint, as it’s the child who is claiming to have been harmed by not having been aborted and the success of the claim therefore rests on whether or not the jury believes that it’s better to never have been born than to have been born with the child’s disability. Even in “wrongful birth” cases, which theoretically don’t require the jury to believe that the child’s life is absolutely worthless, the success of the claim requires the parent to repeatedly and convincingly state, through a judicial process that might take years, that her (most likely living) child should never have been born; not exactly a recipe for the start of a healthy mother-child relationship.

I will acknowledge that it’s at least ambiguous whether the Arizona bill would prevent lawsuits that I think should be allowed. For example, some pregnancies may be sufficiently dangerous to the mother that the mother herself may suffer physical harm or death if she isn’t informed about the danger and therefore fails to terminate the pregnancy. In a sense, a lawsuit over this type of negligence may be characterized as “a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.” But it’s also possible to construe the statute narrowly and say that this sort of lawsuit isn’t based on the claim that the child shouldn’t have been born but rather the claim that the mother should not have continued the pregnancy. These phrases are equivalent for certain practical purposes but have different implications: a claim that the mother shouldn’t have continued the pregnancy implies that the problem was with the mother’s health, not some undesirable feature of the child. It also helps to keep in mind that a lawsuit based on the doctor’s failure to warn the mother that her pregnancy has become dangerous would not usually be referred to as a “wrongful birth” lawsuit.

I’m also not entirely sure I would oppose a “wrongful conception” claim. As someone with Jewish ancestry, for example, I’ve chosen to get screened for the Tay-Sachs gene to ensure that I do not end up having children with another Tay-Sachs carrier. Tay-Sachs is an excruciatingly painful and fatal disease, and I’m not sure I want to relieve doctors of the duty to take reasonable care in conducting genetic screenings to prevent Tay-Sachs. I’m sure some would argue that it’s hard to draw the line between screening for Tay-Sachs and screening for other disabilities, including the ones I have. But I am pretty sure that there is a line and that it’s possible to say with some certainty that Tay-Sachs screening is on the right side of it.

In any case, the Arizona bill is at the very least not a grand overreaching by pro-life conservatives. The relevant issues are tough ones that go far beyond women’s reproductive autonomy. Although I can imagine someone opposing this bill and still caring about disability rights, framing it as a clear-cut issue is essentially saying that disability rights don’t matter (something that’s unfortunately not all that uncommon).

ETA: if you want an example of how godawfully these suits play out in real life, check out this recent case in which parents won 2.9 million against a doctor for the wrongful birth of a child with Down’s Syndrome. By their own account these parents love their child and only sued in order to get money to provide for her; I don’t blame them. But there’s something creepy about a legal system that offers parents of children with disabilities tons of money to care for them, but only if they say sufficiently convincingly that they did not want those children at all and would have aborted them had they known they’d be disabled (and of course to say that sort of thing convincingly you often have to convince yourself). Parents who can’t establish that their child would never had been born but for a doctor’s negligent failure to detect the child’s disability are stuck either footing that entire $2.9 million bill for services (if they have it) or trying to milk it out of the public safety net (which is terrible).

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Filed under Children's Rights, Disabilities, Feminism, Health Care, The Law as Applied to Weird People & Situations

Ableist Attorneys

I work at a national disability rights legal nonprofit, so I get a lot of calls from people with psychosocial, developmental, and/or intellectual disabilities who need legal help. Unfortunately, because we only have one office and there are restrictions on practicing law out of state, nearly all of the work that we do in other states has to be in partnership with local lawyers. As a result, we generally can’t get involved in someone’s case unless they’re already represented (and usually can’t get involved even then, just due to resources issues).

When I can’t help a caller directly, I usually try to refer him or her to local advocacy organizations. Each state has at least one Protection and Advocacy organization that represents people with disabilities in some kinds of cases (like institutionalization, abuse and neglect, and housing discrimination), and some sort of legal services organization intended to help people with non-disability-specific issues such as criminal matters, family law, or bankruptcy. Many states also have other nonprofits dedicated to representing people with disabilities as well.

These organizations play an important role and help lots of people, but I still all too often see situations in which people who really need legal help get turned down by the local nonprofits because they’re “difficult.” A potential client is “difficult” if she (and I really mean “she” – 90% of the people I’ve seen get labeled this way are women) is hard to keep on task, if she is “emotional” and gets upset easily, if it’s hard to explain to her what’s going on and what she needs to do, or if she has “too many problems.” Or if it’s someone who wants to complain about a previous psychiatric hospitalization – one that actually was manifestly unwarranted because they weren’t a danger to self or others – and who doesn’t believe she has a disability and doesn’t want to take meds.

It’s bad enough when general legal aid organizations refuse to take these clients, but it’s even worse when the culprits are places that are supposedly devoted to representing people with physical or mental disabilities. If you don’t want to work with people who are hard to communicate with, have “bad judgment,” or are otherwise high-maintenance, don’t go work for an organization devoted to representing people with intellectual, developmental, or psychosocial disabilities. Honestly, don’t even go into legal aid services at all. When your organization functions as a legal safety net, you don’t get to cherry-pick your clients.

This isn’t to say that every single person with an intellectual, developmental, or psychosocial disability is hard to communicate or work with. But those whose disabilities do affect their ability to communicate professionally and concisely and with perfectly even emotional tenor, and who do have impulse control issues who do frequently disagree with their doctors are often exactly the people who most need free and respectful legal assistance. They are often people who have nobody on their side and very limited ability to effectively represent themselves. If they’re lucky, they have supportive family members who will interface with attorneys and navigate the system for them – many of the same attorneys who’d turn down a “difficult” client would be perfectly happy to deal with the client’s less-“difficult” family member – but most of the people I talk to aren’t that lucky.

I am generally reluctant to publicly criticize members of my profession, but this is just not okay. Yes, it does take some extra effort to deal with people who need to be frequently redirected or need to have things explained to them multiple times or keep talking about how everyone’s out to get them. But there are plenty of resources available to help legal services lawyers learn how to deal with clients who have communication and comprehension issues as a result of a disability; there’s even a manual on it published by the American Bar Association that is pretty good.

Our legal system will only work if everyone has a real opportunity to enforce their legal rights. And that means everyone.

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Filed under Disabilities, Feminism, The Law as Applied to Weird People & Situations, Uncategorized

Arkansas’ Rape Shield Undermined

Here’s another example of what can go wrong when judges are asked to draw legal conclusions about situations and experiences they don’t understand: <a href=”http://www.feministlawprofessors.com/2011/12/only-exception-arkansas-case-reveals-danger-states-undifferentiated-rape-shield-exception/”>a defendant in a sexual assault trial was able to raise the fact that a teenaged girl had previously accused another person of abuse, as evidence of her “credibility.”</a> Continue reading

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Filed under Children's Rights, Feminism, The Law as Applied to Weird People & Situations

Laws and principles: not the same thing

I’m pretty pleased that the Mississippi’s Proposition 26 (also known as the “personhood amendment”) did not pass. Not just because I’m pro-choice (although I am), but because it was exactly the sort of law that tends to be really horrible for minorities and people in uncommon situations: one that is based on people’s feelings about the subject in the “usual case” with no discussion of how the law will play out in unusual cases. The proposed amendment simply left it up to the discretion of courts and prosecutors the legality of terminating ectopic pregnancies, using in vitro fertilization (including freezing and transfer of embryos), providing potentially lifesaving treatment for pregnant women that could put the pregnancy at risk, or use of hormonal birth control (even sed for a medical reason other than birth control, such as endometriosis).

Proposition 26’s proponents even acknowledged that these details were yet to be fleshed out. Freda Bush, one of the individuals interviewed in the article I just linked, even went so far as to say “those questions that are there” regarding whether women could be prosecuted for miscarriages and whether birth control would be banned “do not justify allowing nine out of 10 of the abortions that are being done that are not for the hard cases.” Basically, in Bush’s thinking, if the “hard cases” are sufficiently rare, they’re not even worth addressing with your legislation.

The problem is that laws generally aren’t construed to apply to only the situations voters or legislators were imagining at the time the laws were passed. Defining embryos as people won’t just potentially affect the legality of abortions, it affects the legality of pretty much any imaginable act that someone takes involving an embryo.

So while I’m pleased that abortion is still legal in Mississippi, I’m even more pleased that Mississippi voters decided not to approve an “anti-abortion” measure that had potentially wide-reaching and unpredictable effects on women experiencing unusual and problematic pregnancies, women who miscarry, and women who are in need of hormonal birth control.

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Filed under Feminism, Health Care, Regulation, The Law as Applied to Weird People & Situations

Stimulus package

AAPD is calling for people to write their congresspeople in support of keeping funding for independent living centers in the stimulus package.

Here’s what I wrote:

Dear Senator/Representative,

I am writing to you to express my support for the Independent Living provisions in the proposed economic stimulus package.

These provisions will create thousands of jobs for caregivers. Creating caregiving jobs is particularly important because these jobs are most often taken by women. While I support greater efforts to encourage women to take jobs traditionally occupied by men, it is nevertheless important to acknowledge that the other, more construction-related jobs created by the stimulus package will primarily primarily benefit men, leaving women’s unemployment relatively unaffected. Women, particularly mothers, suffer disproportionately from economic distress and will need jobs too.

Second, Independent Living Centers will improve the standard of living for America’s disabled population. Not only will they help help many people with disabilities reenter the work force, but also they will enable many family members of people with disabilities return to work, as they will no longer be forced to stay at home with loved ones who need full-time care.

Finally, Centers for Independent Living save state budgets hundreds of millions of dollars a year by helping people stay out of institutions and in the community.

Thank you for your attention, and I hope that a satisfactory stimulus bill can be passed as soon as possible.

Speaking of independent living and the AAPD blog, there’s also a good article here on Hillary Clinton’s approach to disability rights as part of US foreign policy. Clinton compares her approach to disability rights as part of foreign policy to her feelings on women’s rights, “not as an afterthought, not as an adjunct, but in recognition of the fact that we know from a myriad of studies and research that the role of women is directly related to democracy and human rights.”

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