Legislative Analysis of H.B. 1236 (2010)

Modified: 06/03/2010

“Negligent Screening”

(Sponsor: Davis)

By Pamela L. Sumners, Esq., Executive Director

H.B. 1236 is objectionable on all of the following grounds:

1. It defines “abortion,” in Section 188.012 (1) so as to exclude all abortions except those to “preserve the life or health of the child after live birth, or to remove a dead fetus.”

2. It sweeps too broadly in the definition of “abortion provider,” defining it as “any entity that refers for abortions as a normal part of [its] business at least ten times per year.” See Sec. 188.012 (2). This overly broad definition could impose on organizations that are not providers of medical services and which have no legal duty with regard to informed consent all of the duties of disclosure of ostensible risks associated with abortion, chilling them in performing their mission of helping women access abortion care. It goes without saying that the provision would be a huge interference with the practices of internal medicine doctors and OB/GYNs and would potentially subject them to large malpractice liability. Indeed, sweeping too broadly appears to be intentional, for Section 188.012.3 (5), imposing various duties to assess and disclose risk, reaches not only physicians “performing” abortions, but also those “recommending” them.

3. Because it requires the disclosure of alleged “risk factors” associated with abortion provided that the alleged risk factor has been reported in any journal included in the Thomson scientific master journal list or indexed in various medically related online search sites, there is a risk that physicians will have to apprise their patients of studies based on bad research. Bad research can show a statistically significant correlation (greater than 5%) among factors precisely because the methodology employed was bad. For example, “Dr.” David Reardon,[1] a leading proponent of the junk-science “abortion trauma syndrome” theory, once surveyed 283 women who self-identified as having experienced psychological repercussions they associated with an earlier abortion; he also excluded from his study any woman who had not had an abortion in the past year. By contrast, three separate National Institutes of Health studies and the leading JAMA articles conclusively demonstrate that the chief emotion experienced by women post-abortion is relief.[2]^,[3]

Similar observations could be made about the thoroughly debunked right-wing claim that abortion increases the risk of breast cancer; about complications such as hemorrhaging and uterine tears, etc.[4]^,[5] The fact that an article may be peer-reviewed or appear in a peer-reviewed journal does not mean that the survey results in any published article are necessarily reliable; indeed, an article may be published precisely because it is controversial or invites negative peer review for its methodology or sample size, for example. At a minimum, the journals should be those of the American Medical Association of the American College of Obstetricians and Gynecologists.

4. The requirement that all patients be counseled by a licensed psychologist, licensed social worker, licensed professional counselor, or LPN prior to recommending, referring for, or performing an abortion may be unduly burdensome for providers.

5. The bill's risk-disclosure requirements apply except in cases of medical emergency, which is defined far too narrowly. All of the bill's risk-disclosure requirements apply unless the abortion is necessary to “avert the death of the mother or for which twenty-four-hour delay will create grave peril of immediate and irreversible loss of a major bodily function.” See Sec. 188.102.2 (4). Failure to comply in other, nonemergency circumstances subjects physicians to $10,000 penalties for each failure to screen a patient for any risk factor and for each failure to inform her of any potential complication linked to each risk factor—potentially exponential liability. The bill also would award attorney fees and costs of litigation. The bill also lays the predicate for imposing punitive damages in all cases (establishing the presumption that failure to comply with risk-disclosure requirements was willful and wanton unless the defendant proves it was merely negligent). See Sec. 188.012.4 (d).

6. The bill allows a cause of action for wrongful death to a woman who had an abortion regardless of whether the fetus she aborted was viable. See Sec. 188.012.4 (1) (b). This cannot be reconciled with Roe v. Wade. Moreover, the cause of action can be brought not only against the physician who performed the abortion, but also against any “abortion provider”—defined as any entity that as a regular part of its business refers for abortions more than 10 times a year. This could include counseling services, advocacy organizations, family doctors, and general OB/GYNs who did not themselves perform the abortion. More problematic, the woman's cause of action for negligent screening/malpractice or for wrongful death can be brought anytime within two years after she “becomes or should have become aware that the abortion was the probable of contributory cause of a physical or emotional complication and has recovered from any psychological complications which may have impeded the patient's ability to seek or cooperate with counsel to pursue a civil remedy.”

Many legal scholars have noted the dangers of allowing causes of action to accrue based on the plaintiff's “discovery” of harm, particularly psychological trauma. This is why many states favor strict statutes of limitations that are not tolled by the plaintiff's “discovery” in later life that he or she had injuries of which he/she was unaware within an ordinary statute of limitations period.[6] In this case, of course, the bill also assumes that abortion generally causes psychological harm to women when in fact the science demonstrates the opposite.[7]^,[8] Anomalously, the bill purports to allow a woman's survivors to inherit her cause of action for what can only be described as her personal mental distress and allows them two years after her death to sue on it. The problems of proof in such cases are obvious.

7. The bill creates a predicate presumption for liability. It states that if a person or entity subject to the requirements of the bill fails to comply with its excessively exacting requirements, this failure will establish the presumption that the patient lacked informed consent and that had there been compliance, there would be no abortion. This satisfies at least one element of a prima facie case without making the parties prove anything about genuine informed consent to an abortion.

8. The woman who has had an abortion need not prove any physical injury in order to sue; emotional harm alone will suffice. This is ironic by comparison with the emergency exception from the bill's disclosure and certification requirements, which are triggered only if the woman is in imminent danger of dying or suffering irreversible bodily damage.

9. The bill treads on the province of the courts in seeking to accredit who is presumptively qualified to be an expert in a civil suit brought under its provisions (family practitioner presumptively qualified to testify as an expert on screening, counseling, management and treatment of unwanted pregnancies). See Sec. 188.012.4 (c). In Section 188.012.6, it purports to confer on one of the bill's legislative sponsors the power to intervene as of right in the event the constitutionality of the statute were challenged. Determinations about intervention are governed by the Missouri Rules of Civil Procedure and are subject to judicial discretion. The “people” of Missouri are represented in court not by legislators, but by the Office of the Attorney General.

10. One of the affirmative defense provisions is simply bizarre. Section 188.012.4 (5) (b) provides an affirmative defense to the abortion provider if two licensed psychiatrists examined the woman pre-abortion and concluded that disclosing information to her would have immediately and directly caused severe adverse effects on her physical health.

11. The bill allows a cause of action for reckless endangerment for anyone who is not a physician who attempts an abortion or aids a woman in a self-induced abortion without regard to whether she was harmed and prescribes an $800,000 penalty plus attorney fees and costs.

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