A.G.’s office defends ban on wrongful birth lawsuits before Kansas Supreme Court

Kansas Supreme Court Justice Eric Rosen questions an attorney during Wednesday's virtual hearing over a 2013 anti-abortion law. (Screenshot by Sherman Smith/Kansas Reflector)
Kansas Supreme Court Justice Eric Rosen questions an attorney during Wednesday's virtual hearing over a 2013 anti-abortion law. (Screenshot by Sherman Smith/Kansas Reflector)

TOPEKA — An attorney for the Kansas Attorney General’s office argued Wednesday before the Kansas Supreme Court that parents shouldn’t be allowed to seek damages from a doctor who fails to notify them of a known birth defect before a child is born.

The court in 1990 opened the door to civil action over wrongful births. In 2013, anti-abortion legislators — concerned that information about birth defects may persuade women to terminate a pregnancy — slammed the door shut by banning such lawsuits.

Alysia Tillman and Storm Fleetwood challenged the validity of the law after their child was diagnosed with a rare brain defect that resulted in a severe and permanent neurological, cognitive and physical handicap. They claimed Katherine Goodpasture, a Manhattan doctor, failed to properly read an ultrasound, but were blocked by the state law from seeking damages to offset their costs of caring for the child.

The couple said they would have terminated the pregnancy if they knew about the condition.

“The Legislature cannot, simply because it does not like abortion, simply cannot step in and deprive these folks and others similarly situated of their right to remedy by due course of law,” said Lynn Peterson, an attorney representing the couple.

Brant Laue, deputy solicitor general for the Attorney General’s office, defended the 2013 law. He said the Kansas Constitution limits tort claims to issues spelled out in 1859 common law.

“The plaintiffs are asking this court to expand the reach (of the Bill of Rights) to protect any judicially created cause of action — no matter how new or novel — as long as it allows the plaintiff to seek money damages,” Laue said.

A decision that favors the couple, Laue said, “would create separation of power issues” by the high court.

Justice Eric Rosen questioned Laue’s rationale.

“Are you suggesting,” Rosen said, “that as medical science progresses, which it obviously has since 1859 — I mean, the idea of X-rays, the idea of sonograms, the idea of CT scans, and it’s going to continue to evolve, and we’ll encounter all new kinds of injuries as we evolve over the next 50 or 100 years. Is it your position that as those new injuries occur, as a result of new interventions though medicine or science, that (sections of the constitution) preclude court action? I don’t understand why if something is new, then it’s precluded.”

There is no timetable for the justices to issue a ruling in the case. A decision to strike down the 2013 law would further agitate anti-abortion activists who sought an amendment to the constitution earlier this year.

The proposed amendment was a response to a landmark 2019 ruling by the Kansas Supreme Court that declared the state constitution guarantees women the right to terminate a pregnancy. The ruling struck down a state law that banned a second trimester procedure and secured the right to an abortion even if federal courts ever reverse Roe v. Wade.

In the 2019 ruling, justices said the Kansas Constitution’s Bill of Rights “affords protection of the right of personal autonomy, which includes the ability to control one’s own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life — decisions that can include whether to continue a pregnancy.”

Efforts to pass an amendment declaring there is no right to an abortion held up legislative action before the pandemic, when it failed to receive enough support in the House. Proposed changes to the constitution require a two-thirds majority of both chambers before being placed on a ballot before voters.