As Jezebel reported yesterday, a committee of Arizona lawmakers has approved a bill that would prevent doctors from being sued for malpractice in cases of “wrongful birth” or “wrongful life.” The former situation most often occurs when a child is born with severe disabilities that, if the parents had been made properly aware, may have led them to consider terminating the pregnancy. “Wrongful life” suits, on the other hand, generally involve children born of failed vasectomies and other sterilization surgeries.
While the sponsors of the measure argue that it is meant to protect doctors from unfair litigation, the language of the bill seems strategically designed to allow anti-abortion doctors to keep potential disability information from parents without fear of legal retribution. Before becoming law, the bill still must be considered by the full Senate and House.
Republican Nancy Barto introduced the bill under the pretense that sometimes, tests performed in good faith are wrong, and angry parents are simply looking for someone to blame. And on the surface, that would seem to be a fair rationale—but look at the slippery language:
A person is not liable for damages in any civil action for wrongful birth based on a claim that, but for an act or omission of the defendant, a child or children would not or should not have been born.
While a failed test or misdiagnosis might be covered under an “act,” the term “omission” affords a dangerous amount of deniability to ideologically motivated physicians. To be fair, the law does allow for suits brought “for damages for an intentional or grossly negligent act or omission,” but who’s to say what’s constitutes “gross” or “intentional” in any specific case? The flimsiness of this language far too easily enables biased doctors to innocently say “oops,” when their politics have actually interfered with what should fundamentally be a parent’s choice.