Texas should call itself The Granny State. That’s because it’s a nanny state in which the public officials who run the place have the values of a tea-totaling, Bible-thumping biddy who knows how God wants everyone to live and can’t resist telling them. No buying liquor on Sundays when people are supposed to be at church. No gambling ever. No whacky-weed for medicinal uses or recreation, even in the privacy of one’s home. No gay marriage, preferably no gays, and no transgender folk deciding which restrooms to use. And, of course, no sex, sex education, birth control, or abortions. Women should have sex only in marriage and then only to reproduce, and those who get pregnant must carry their babies to term, regardless of the consequences for themselves or anyone else.
These religion-inspired policies have served Texans poorly. The state’s maternal mortality rate nearly doubled in just two years after Texas cut its budget for family planning by two-thirds and eliminated funding for Planned Parenthood clinics. It’s now the worst in the developed world, not just in the US. Texas ranks 8th from the bottom in the frequency of STDs and has the 5th highest teen pregnancy rate too. Its 35 births per 1,000 girls aged 15-19 are nearly double the national average. Meanwhile, Colorado and other states have achieved miraculous reductions in teen pregnancy rates and abortion rates by providing young women with long-acting contraceptives, like implants and IUDs. If Texas is following God’s plan, then God’s plan is a bust.
Now Granny is once again sticking her nose where it doesn’t belong. Currently before the Texas legislature is Senate Bill 25, which would eliminate the wrongful birth cause of action that the Texas Supreme Court recognized four decades ago in Jacobs v. Theimer. The facts were as follows. While traveling, Dortha Jacobs became ill. Upon returning home, she consulted a physician, Dr. Louis Theimer, who discovered that she was newly pregnant. Fearing that the illness was rubella—also known as the German measles—Jacobs asked Dr. Theimer if there was reason for concern. Rubella can injure a gestating fetus severely. Dr. Theimer told her not to worry, but he did so without performing an available diagnostic test. In fact, the disease was rubella and the child “was born with defects of brain, speech, sight, hearing, kidneys, and urinary tract,” among others. The medical expenses were extraordinary.
The Jacobs sued for medical malpractice. In defense, Dr. Theimer argued that his mistake could not have harmed them. When Mrs. Jacobs became pregnant, the US Supreme Court hadn’t yet decided Roe v. Wade and abortion was illegal in Texas for all purposes except to save the life of the mother. Because the baby’s defects did not endanger Mrs. Jacobs, Dr. Theimer contended that abortion wasn’t an option for her. She’d have had to deliver the baby even if he had identified her illness correctly. Therefore, she and her husband would also have had to bear the infant’s medical costs.
The Texas Supreme Court disagreed. Abortion was illegal in Texas, it reasoned, but the procedure was lawful elsewhere. Consequently, Dr. Theimer had to give the Jacobs the information they needed to choose among their available options, including the option of having an abortion performed in another state. By misdiagnosing the illness, he therefore caused their loss and was on the hook for the extraordinary medical costs. (To be clear, Dr. Theimer was not responsible for costs the couple would have borne in the course of raising a healthy child. A healthy child is regarded as a gain, not a loss, even when a pregnancy is unwanted.)
SB 25 would eliminate the wrongful birth cause of action by making it impermissible for anyone to recover damages by claiming that they would have terminated a pregnancy instead of carrying a baby to term. The bill provides that “[a] cause of action may not arise, and damages may not be awarded, on behalf of any person, based on the claim that but for the act or omission of another, a person would not have been permitted to have been born alive but would have been aborted.” Had the bill been law in 1975, the Jacobs would not have been able to argue that, but for Dr. Theimer’s negligence, they would have aborted the baby. They’d have had to pay for all the surgeries and other treatments the child needed, expenses that, today, would into the millions.
SB 25, which offers parents in the Jacobs’ position no financial help at all, has already passed the Texas Senate and seems bound to pass the House. Its success is assured because, politically, it is a two-fer. Texas’ Republican lawmakers are eager to free doctors from financial responsibility for medical errors and to advance the Christian right’s anti-abortion agenda. SB 25 does both.
The bill will cause problems, though, first and foremost because it allows medical providers to make errors with impunity. Given the frequency with which mistakes occur, Texas’ leaders should be strengthening the incentives providers have to exercise reasonable care, not emasculating the state’s already-weakened malpractice liability system.
The wording of SB 25 is also too broad. Suppose that a woman with a defective uterus becomes pregnant, that her ob-gyn negligently fails to identify the defect, that late in the pregnancy her uterus ruptures, and that the woman dies or is severely injured. If SB 25 becomes law, neither the mother nor her survivors will be able to recover from the ob-gyn. Their claim would be that, but for the doctor’s mistake, the mother would have protected herself by aborting the fetus instead of carrying the baby to term—precisely the claim that SB 25 would forbid. The bill would thus eliminate civil liability for negligence committed in the one context where abortion has always been lawful in Texas—to protect the life of the mother.
There’s no need for the bill either. In 2003, Texas eliminated the possibility of excessive damage awards in medical malpractice cases by capping patients’ damages. Both the number of malpractice claims and physicians’ insurance premiums are at historic lows. Wrongful birth cases are rare too. Although the available data do not quantify them precisely, a study by The Doctors Company finds that most malpractice claims against obstetricians involve delays in treatment of fetal distress or improper performance of vaginal delivery. Wrongful birth claims are brought too infrequently to have their own category.
SB 25’s supporters are offering two types of argument in support of the proposal. One is the worn-out assertion that the bill will attract doctors by making Texas a safer place for them to practice. Texas is already one of the most doctor-friendly states in the US—Emergency Physicians Monthly ranks it among the top four—and the assertion that tort reform brings doctors into the state has been thoroughly disproven. Texas’ leaders should be ashamed of themselves for repeating this falsehood.
Another argument is that wrongful birth lawsuits insult disabled persons by telling them that they would have been aborted had their parents known of their impairments. This is an example of good intentions gone astray. In all lawsuits, parties say unpleasant things about others. Plaintiffs accuse defendants of neglecting duties, committing frauds, breaking agreements, and being dishonest. Defendants accuse plaintiffs of spouting falsehoods, exaggerating injuries, and being responsible for their own losses. One wishes that civil justice could be delivered with fewer insults, but it is a blood sport and always will be. The main point, though, is that parents of children borne with serious defects need resources. Only with those in hand can they love their children and provide for them too. When the choice is between a dignitary loss and the money with which to pay for life’s necessities, the decision is easy, even if it is also made with regret.
Charles Silver is a professor at the University of Texas School of Law and a co-author of After Obamacare: Making American Health Care Better and Cheaper (forthcoming 2018).
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