The XX Factor

Florida Bill Letting Women Sue Doctors for Terminating Their Pregnancies Passes Out of Subcommittee

Pro-life marchers and pro-choice counterprotesters mingle outside the Supreme Court during the annual March for Life, Jan. 27, 2017.

James Lawler Duggan/Reuters

A Florida bill letting women sue the doctors who performed their abortions for emotional distress—up to 10 years after obtaining the procedure—passed out of subcommittee on Thursday by a 10-6 vote. Should the bill become law, all doctors who terminate a pregnancy in Florida will open themselves up to a decade of liability. Former patients who sue under the law could receive damages equivalent to those in a wrongful death action.

The bill initially states that only those physicians who are negligent, or fail to “obtain the informed consent” required by Florida law, may be held liable. But it then adds that “the signing of a consent form by the woman”—the proof that both doctor and patient followed Florida’s byzantine consent procedures—“does not negate the cause of action.” Instead, it only “reduce[s] the recovery of damages.” The upshot of this strange caveat is that even if a doctor complies with Florida’s “informed consent” requirements, and has proof of this compliance signed by the patient herself, the patient can still sue if she feels she did not really have the information she was owed.

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Understandably, lobbyists for both doctors and insurance companies are appalled by the bill, which would upend Florida’s current medical malpractice scheme and allow physicians to be sued for performing a legal procedure. (One Republican even crossed party lines to vote with Democrats in opposition to the measure, citing “the unknown potential consequences.”) It also has an unusually lengthy statute of limitations for no apparent reason other than to target abortion providers. (The statute of limitations for a medical malpractice suit in Florida is typically two years.) Indeed, the entire bill seems crafted to punish doctors who dare to terminate pregnancies, leaving them vulnerable to massive lawsuits simply for doing their job.

Is that legal? Probably not. So long as the Supreme Court holds that women have a constitutional right to terminate a pregnancy, the states cannot outlaw the procedure itself. It would seem to follow that states cannot reduce the number of physicians willing to perform the procedure to zero by opening them up to wacky lawsuits and devastating damages. (What doctor would dare perform an abortion when the patient could turn around and sue them for millions?) By scaring doctors out of performing abortions, the Florida bill would clearly place a substantial obstacle in the path of women attempting to terminate a pregnancy. And because this obstacle provides no countervailing benefits, it violates the Constitution. Chalk this bill up to one more futile attempt to revoke women’s constitutional rights using a pretext that is literally too flimsy to believe.

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