So I’m going to try to be calm about this. First off, I’ve gotten at least eleventy billion links to this. Let’s get one thing out of the way here.. I have absolutely no clue who Mary Alice Carr is, outside of the author blurb on the piece. So with that in mind, I have to make a normal assumption, namely that she’s a kick-ass person and probably cool as all hell to hang around. Unfortunately, for this piece, she’s just misguided.
So let me do what seemingly no one else has done. Let me post the legislation and let’s talk about it and then talk about why Oklahoma isn’t trying to outlaw abortion or anything else zany. But we’re also going to talk about the fact that this legislation is still a bit goofy. Of course, the usual disclaimer applies in that I AM NOT A LAWYER. I’ve read the legislation and interpreted it to the best of my ability. Additionally, I AM NOT A DOCTOR. So please let’s all take this for what it is, my interpretation and opinion of things. Despite my confidence that I’m clearly understanding this, there is most assuredly the possibility that I am inadvertently LYING MY ASS OFF. So with that said, let’s get on with this…
First off, a link to the legislation, in case you just want to have it open on your computer too.
Ok. So let’s go section by section:
First off, the name of the bill:
An Act relating to public health and safety; stating legislative intent; defining terms; prohibiting recovery of damages in certain circumstances for wrongful birth and wrongful life actions; excepting specific circumstances; repealing Section 14, Chapter 36, O.S.L. 2008 (63 O.S. Supp. 2009, Section 1-741.11), which prohibits the recovery of damages in certain circumstances for wrongful birth and wrongful life actions; providing for codification; and declaring an emergency.
What does.. wait.. what the? Ok, better. Aaaaaaaaaaanywho. What does this mean? Well, look right in there.. “recovery of damages.” And yes, you guessed right.. that means “lawsuit.” Let’s move on.
A. It is the intent of the Legislature that the birth of a child does not constitute a legally recognizable injury and that it is contrary to public policy to award damages because of the birth of a child or for the rearing of that child.
What does this mean? Basically, it means that if a child is born with birth defects, it’s not the doctor’s fault. Period. Ergo, the doctor is not financially responsible for paying anything if the kid comes out with Downs, or severe congenital defects, or happens to think Justin Bieber is even vaguely relevant. And onto the next section!
B. For the purposes of this section:
1. “Abortion” means the term as is defined in Section 1-730 of Title 63 of the Oklahoma Statutes;
So they tell you where to find what they consider “abortion” to be. Pretty standard. You’ll take note that abortion isn’t illegal in Oklahoma. Hard to get, yes. Illegal? Not so much. Further we go to the next section.
2. “Wrongful life action” means a cause of action that is brought by or on behalf of a child, which seeks economic or noneconomic damages for the child because of a condition of the child that existed at the time of the child’s birth, and which is based on a claim that a person’s act or omission contributed to the mother’s not having obtained an abortion; and
3. “Wrongful birth action” means a cause of action that is brought by a parent or other person who is legally required to provide for the support of a child, which seeks economic or noneconomic damages because of a condition of the child that existed at the time of the child’s birth, and which is based on a claim that a person’s act or omission contributed to the mother’s not having obtained an abortion.
Translation? Basically it defines “wrongful life action” and “wrongful birth action.”
- “Wrongful Life Action” – Abortion.
- “Wrongful Birth Action” – Having the kid despite them having severe birth defects.
I agree, taking “abortion” and renaming it “wrongful life action” is remarkably retarded… but who the hell cares? The main point is that folks can’t sue because they found out the kid had birth defects, went out, termed the kid and complications arose from it and then they decide to lawyer up and find some deep pockets to hit. They aren’t saying “you can’t get an abortion,” but they ARE saying “you can’t sue because of what YOU chose to do based on what the doc told you.” This is the part that most people are not understanding and completely misinterpreting. Is it confusing? Of course it is because the folks who drafted it just so happen to have a possible axe to grind over abortion. However, it’s their problem and no one else’s. The language might be pissy, but it’s still about LAWSUITS.
C. In a wrongful life action or a wrongful birth action, no damages may be recovered for any condition that existed at the time of a child’s birth if the claim is that the defendant’s act or omission contributed to the mother’s not having obtained an abortion.
Basically, more of the same. You can’t sue because you had the kid and it turned out with birth defects and you wish you would have aborted before realizing you were in some deep yogurt. This part IS a bit of a pisser though, because it attempts to legally absolve the doctor of responsibility. However, you’ll notice that the words HIPPOCRATIC OATH don’t appear anywhere in there and that’s super-duper important because the Hippocratic Oath supercedes all legal precedent anyways, namely the first chunk.. “do no harm.” NOT telling the parents that baby Timmah might come out like Stephen Hawking minus the bad-ass intelligence actually still violates the Hippocratic Oath, can get the doctor into a shit-ton of trouble with the medical board and, in general, make their life a living hell, and stopping them from practicing medicine. Again, this is about LAWSUITS.
D. This section shall not preclude causes of action based on claims that, but for a wrongful act or omission, maternal death or injury would not have occurred, or handicap, disease, or disability of an individual prior to birth would have been prevented, cured, or ameliorated in a manner that preserved the health and life of the affected individual.
See my paragraph above. It’s just them saying “Seriously.. you can’t sue. Don’t even try it people.”
Now, it seems like a lot of people think this is about abortion. It really technically isn’t. It’s more about trying to stop people from suing over a kid being born with severe birth defects. Period. Yes, some of the wording is pretty stupid (ie: calling “abortion” “wrongful life action”), but it’s still basically saying that the birth defect isn’t the doc’s fault and you can’t sue because you’re birthing/aborting a grapefruit instead of a healthy baby kiddo. That’s it. Yes, you still have the ability to petition for redress, but by going through the medical board and not the state court system. Near as I can tell, this seems like some strange, coded attempt to shift this over to the medical boards.. which are still state-run. So that part is a bit confusing to me. Again, there is still the Hippocratic Oath and there isn’t any court of governmental system in existence that cancels it out. So there’s still a requirement for a doctor to be pretty upfront about what’s happening to the expectant mother. Just because the state says “you can’t sue,” doesn’t mean that, suddenly, the doctor can just wield his own oral code. Again, this legislation is really about stopping rampant abuse of the court system for spurious lawsuits, which DOES happen. I know that, despite how you may feel about this legislation, you can at least admit that the courts ARE abused by people who didn’t think this through and then figured that SOMEONE had to pay and went after the docs.
BTW.. Mary Carr, if you’re reading this… I know that you are speaking on behalf of your organization, but I highly disagree with the idea of this being “paternalistic incursion” unless that’s in response to HB 2780? Which THAT bill is all sorts of goofy. It makes sense though from a litigious standpoint (since lawsuits towards the med profession seem to be the modern era’s Get Rich Quick Scheme) but I’m still just all “do what?” about the bill itself. And I’ll also agree that the anti-abortion folks claiming some sort of victory on this is pretty dumb. So at least we agree on that part of things. But I still vehemently disagree that this is any sort of attack on motherhood.
And for another view on this particular legislation, go check out my buddy Bryan’s post on it. We both seem on the same page about this bill, but for different reasons.