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Ignoring reality: Attacks on SB1359 are nonsense

Facts are boring. Reality is overrated. And the truth is inconvenient.

This is the only way I can begin to rationalize why the left and many in the media have so vehemently attacked SB1359, a tort reform bill that prohibits wrongful life and wrongful birth lawsuits.

For instance, in a letter to the editor in last week’s Arizona Capitol Times, Karen Sabransky claimed that SB1359 “encourages doctors to lie by withholding critical, life-saving information from their female patients or failing to perform necessary tests in the first place.”

I wish Ms. Sabransky had read the language of the bill, because any conduct that is intentional or considered grossly negligent is not protected by SB1359. Therefore, a doctor or medical professional who intentionally withholds information or purposely does not perform a necessary test is still subject to civil liability.

The nonsensical attacks by Ms. Sabransky didn’t end there.

She then attempted to tie in a story to make her point. The only problem was that once again, reality wasn’t on her side.

She wrote about Rick and Karen Santorum’s experience having a child diagnosed with a birth defect in utero, and said if Karen Santorum “had been subjected to Arizona’s ‘wrongful birth, wrongful life’

legislation back in 1997, she could have very possibly died.” She goes on to say that legislation like SB1359 would have made it likely that Mrs. Santorum “could have been given false information or no information at all about her medical condition.”

But in 1988, Pennsylvania adopted “wrongful birth, wrongful life”

legislation that is substantively identical to the language proposed in SB1359.

Therefore, in 1997 Karen Santorum was subjected to this legislation, and yet, doctors still informed her that her unborn child had a fatal defect and Ms. Santorum could die if she attempted to carry the child to term.

But since we’re sharing stories, I’ll tell you about a case that shows why we need SB1359.

In Oregon, a couple sued the doctors who performed their prenatal testing because they did not detect that their daughter would have Down Syndrome. The parents argued that if they had known their daughter would have this condition, they would have had an abortion, and therefore the doctors must pay because their negligence allowed her to be born. Last week, a jury awarded the couple nearly $3 million.

Take a moment to truly consider what this ruling implies. It means the jury is saying that the mere life of this child causes harm to her parents, and therefore, someone must pay.

Arizona should not be a state that endorses the viewpoint that the life of a disabled person is worth less than the life of a person without a disability. Rather, we should ban frivolous and offensive wrongful life and wrongful birth lawsuits.

And while the truth about SB1359 may be inconvenient for some, it shouldn’t be overlooked to make the headlines or distort the bill’s actual provisions.

— Josh Kredit is legislative counsel of the Center for Arizona Policy

5 comments

  1. If you’re claiming that the \left\ is misrepresenting, you need to take a good look in the mirror. The Orgeon suit you site is completely misrepresented. Have you spoken with the jurors, the ones that actually sat in the courtroom and listened to testimony from BOTH sides of the argument? The Oregon suit was filed because the physician was negligent – he peformed a CVS test and took tissue from the mother instead of the fetus. The lab could have picked up on the error as well, recognizing that the tissue was maternal and not fetal. The parents, given inaccurate information due to substandard care provided (which both experts and the jury acknowledged), were told their child was 100% healthy. Had they known their child would be born with a congenital anomaly, they would’ve chosen termination. That is their right – to terminate a pregnancy (for whatever reason, be it financial or otherwise). I cannot sit back and allow the \right\ to ignore the fact that they are pro-life, yet when a family choses life for their special needs child, they turn their backs on the family and argue against government programs that provide care and payment for medical treatment (i.e. cutting KidCare, AHCCCS, the Affordable Care Act.) It’s hypocritical at best.

  2. I’d like to add that had the testing been done accurately (within the standard of care for a medical professional) in the Oregon case, the parents would’ve been provided accurate information so that they could make an informed decision. We have checks and balances already in place to protect physicians from “predatory” lawsuits. If you’re not aware of them already, let me educate you. This attempt at barring people’s rights to protect physicians is absurd. You cannot even site to ONE Arizona ‘wrongful birth/life’ case. Why limit legitimate rights of citizens when there is no basis for it? http://thelihns.blogspot.com/2012/03/response-from-sen-nancy-barto.html

  3. Thank you, Stacey Lihn, for posting a cogent response. I’m having trouble managing more than a string of expletives, which never helps…

    I’m finding CAP will say just about anything to justify pushing their “christian” agenda…

  4. The parents had one other choice when they had this baby and that was adoption–they didn’t have to keep her. Problem solved and no issue to the parents.

    The obvious screw up in the Oregon case would not exclude the parents from suing for negligence in AZ either under this law since they were mis-informed by the doctor due to the negligence of the labs. The case would not be against the DR because he didn’t do the tests, it would be against the labs. But, again, the parents still have the right to adoption.

    having worked with downs kids I think these parents will find more love from this child than they thought possible. I never talked to a single parent who had a downs child that wished they’d had an abortion. Imagine my surprise since I am pro-choice.

  5. Jo, you’re dead wrong. The facts of the Oregon case will ABSOLUTELY ban parents for filing a suit. This bill BANS suits for negligent actions – on the lab or physician. You must proove that a physician lied or withheld info – an intential negligence action, not simply negligence. This is exactly the problem; people supporting this bill don’t even understand the language or what it does. And Jo, I’m pretty sure a VERY small percentage, if anyone, would adopt a child with $2-plus mil in medical bills. Hell, if you won’t even reinstate KidsCare, do you think the right wingers will adopt a kid with special needs. FAT CHANCE. Stop blowing smoke, I’m sick of it.

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