TOPEKA — Kansas Supreme Court Justice Caleb Stegall argued the state’s highest court correctly affirmed constitutionality of a ban on wrongful birth lawsuits but should have gone further to erase a dark moment in court history by overruling a decision allowing discrimination against fetuses with severe disabilities.
Stegall, who was chief counsel to Gov. Sam Brownback when the 2013 law in question was signed, said upholding that statute was insufficient to remove the “unrepudiated black mark in our jurisprudential past.” He expressed dismay the Supreme Court refused to also spike the 1990 Supreme Court decision in Arche v. United States recognizing a theory of negligence that allowed a woman to seek damages against a health care provider when asserting she would have had an abortion if told of undesirable physical traits of the fetus.
“This case should be resolved by overruling one of the worst decisions in our court’s history,” said Stegall, Brownback’s lone appointee to the Supreme Court. “In Arche, the Kansas Supreme Court said quite loudly that under Kansas law, some lives are worth more than others.
“And worse, that the lost opportunity to end some lives is actually worth money in a civil lawsuit,” he wrote in a concurring opinion issued Friday. “Who gets to decide which traits count as undesirable enough for the law to recognize the lost chance to abort as a true injury?”
The legal dispute emerged from a lawsuit filed in Riley County by a couple who sued because they weren’t informed by a prenatal doctor of the severe brain abnormality observable from a January 2014 ultrasound of the fetus. The couple claimed they would have sought an abortion if not for the physician’s negligence. Subsequent testing led to disclosure of profound disabilities shortly before birth of a girl in May 2014.
An attorney for Alysia Tillman and Storm Fleetwood asserted his clients had a common law right to sue because Kansas’ Bill of Rights outlined a right to jury trial. The couple sought to recover costs of a lifetime of medical treatment, attendant care and therapy for a child with permanent neurological, cognitive and physical impairments. Plaintiffs argued physician Katherine Goodpasture engaged in medical malpractice for failing to timely report the fetus had an “irregularly shaped fluid-filled space in the brain” diagnosed as a rare birth defect known as schizencephaly.
In response, Goodpasture’s counsel argued the damage claim was prohibited by the 2013 law blocking wrongful birth lawsuits.
The Riley County District Court dismissed the suit and the Kansas Court of Appeals affirmed that action. A divided Supreme Court agreed with the lower courts.
In the majority opinion written by Justice Dan Biles, the Supreme Court said the constitutional right to a jury trial and to seek a remedy didn’t prevent the Kansas Legislature from eliminating the 1990 right to sue in the wrongful-birth category of medical malpractice.
Chief Justice Marla Luckert authored a dissent that found unconstitutional the 2013 law blocking wrongful birth lawsuits because it infringed on the inviolate right to trial.
“The essence of their claim rests on whether Tillman’s physician had a duty to tell her the truth about the test results so she could make an informed decision about her medical treatment,” Luckert said. “This is the essence of a medical malpractice action based on the theory of a duty to ensure a patient’s informed consent.”
In a separate dissent, Justice Eric Rosen said the court’s majority and Stegall would immunize medical professionals from liability for malpractice related to prenatal care and genetic counseling.
“Not only this,” Rosen wrote, “they would immunize those who would willingly withhold information from a pregnant woman in an effort to prevent the patient from choosing abortion. I cannot reconcile these positions with the Kansas Constitution’s protection of personal autonomy, which grants all individuals the right to make decisions regarding their body, health, family formation and family life that can include whether to continue a pregnancy.”
Attorney General Derek Schmidt, who is a Republican candidate for governor, said he appreciated the Supreme Court’s decision in Tillman and Fleetwood v. Goodpasture to preserve state statute preventing wrongful-birth claims. The attorney general’s office entered the dispute to defend the constitutionality of the 2013 law.
“I am pleased we have successfully defended this important statute enacted by the Legislature,” Schmidt said. “In Kansas, the birth of a child should be cause for celebration, not for the law to award damages because the child was ‘wrongfully’ born.”
In 2013, Brownback signed a bill that also declared life began at fertilization, banned sex-selection abortions, prohibited tax breaks or deductions for abortion services, blocked abortion providers from participating in public school sex education classes and required doctors to tell women abortions could raise their risk of breast cancer.
“All human life is sacred. It’s beautiful,” Brownback said at the bill-signing ceremony at the Capitol. An Associated Press photograph of the event showed a piece of paper on the governor’s desk with a handwritten note that said “JESUS + Mary.”
During the September oral argument before the Supreme Court, the attorney representing the Riley County parents said justices should allow to stand the 1990 Supreme Court precedent recognizing wrongful birth as a feature of medical malpractice law.
Kansas City-area attorney Lynn Johnson said his clients should be given the opportunity at trial to recover monetary damages because a physician deprived them of a right to make informed health decisions. He argued Kansans shouldn’t be locked out from holding a doctor accountable for negligence just because the Legislature “doesn’t like abortion.”
On the contrary, Salina attorney Jacob Peterson said, it would be “somewhat crass and somewhat wrong” if the court declared birth of “this child, this living being” sufficient reason to advance a medical malpractice lawsuit. He said a trial in this case would recognize one life was more valuable than another in Kansas.
“That is a value judgment that is simply foreign to a traditional negligence-type analysis,” Peterson said.