Court Of Civil Appeals, (Murdock) Decides Interesting Abortion Case

This story reminded me to comment on the Alabama Court of Civil Appeals decision in L.K.D.H. v. Planned Parenthood of Alabama, Inc. (I would love to link to the decision but Alabama does not make its judicial opinions available on-line.)

Basically, Mom wanted an abortion, which Planned Parenthood of Alabama (PPA) botched, allegedly injuring Child and Mom. Mom sued for her own injuries and for those of the Child. Because of her own procedural missteps, Mom’s suit gets dismissed, leaving her claim on Child’s behalf.

To overcome Child’s claim, PPA relied heavily on another Alabama case, Elliott v. Brown. In Elliott, a child born with a deformity sued the medical provider who had flubbed a vasectomy on the child’s father. The Elliott court rejected the claim, holding that there was no cause of action for a wrongful life. In the same way, PPA argued, Mom in this case was suing for Child’s wrongful life.

Not so, replied the court. The plaintiff in Elliott was not arguing that the medical provider actually caused the defect; just that by failing to properly perform the vasectomy, the provider had allowed for the possibility of a birth and a defect. The argument was that absent the error, the child would never have been born. Hence the medical provider was responsible for the harms suffered during the life. You can see why rejecting this argument makes sense if you just imagine the scope of liability had it been accepted. Any time a medical provider improperly performed some type of birth control operation, they would be liable for any harm suffered during any resulting child’s life.

But that is not Mom’s argument. Here, the court explained:

In contrast to Elliott, L.K.D.H., [Mom] on behalf of J.L.D., [Child] did not claim in the circuit court and she has not claimed in her brief to this court that J.L.D. had a right not to be born. Instead, she alleged before the circuit court and argues in her appellate brief that Planned Parenthood negligently performed the abortion procedure (an allegation that Planned Parenthood conceded for purposes of the summary-judgment motion as to the claims asserted on behalf of J.L.D .) and that Planned Parenthood’s negligence proximately caused injuries to J.L.D. Thus, unlike in Elliott, in the present case (based on the facts alleged on behalf of J.L.D.) it was the physician’s negligence that caused J.L.D.’s physical injury or deformity. The claims asserted on behalf of J.L.D. seek to hold Planned Parenthood accountable for causing an injury or deformity, not for the fact that J.L.D. was born. In other words, unlike Elliott, the present case is an action alleging “wrongful injury,” not “wrongful life.”

PPA responds by reminding the court that if all had gone according to plan, there would have been no birth at all. The opinion does not include the conclusions PPA drew from this, so I am speculating in saying this kind of sounds like they are arguing there were no damages. In other words, Child has a defect, but that Child should not have been born at all means Child has nothing about which to complain even if PPA was negligent and caused the defect. No harm, no foul.

The court also rejected this argument:

We find Planned Parenthood’s position disturbing. According to Dr. Davis’s [PPA’s expert witness] affidavit, when an abortion provider properly performs an abortion procedure, i.e., is not negligent, “particularly during an early gestation period, such as in the case here, it is not uncommon for there to be a continuing pregnancy.” (Emphasis added.) In light of the “not uncommon” possibility that a child will survive even a properly performed abortion procedure, it is untenable for Planned Parenthood to argue that it should be able to avoid liability to the child who is thereafter born no matter how deficient the abortion provider’s actions or how serious the harm the provider might cause to the child.

The opinion, written by Supreme Court hopeful Glen Murdock, then closes with this bit of pulpit thumping:

The United States Supreme Court has decided that a mother has a right under certain circumstances not to give birth to her child. Neither the United States Supreme Court nor the Supreme Court of Alabama has ever ruled that a medical provider, or for that matter a mother, can engage, with some blanket of constitutional protection, in negligent or reckless conduct that deforms or injures a child so long as the deformity or injury is inflicted on the child before it leaves the womb. To embrace this position as the law of the land in Alabama would give license to those who would undertake to end the life of an unborn child to do so as carelessly or recklessly as they wish without bearing any responsibility to those who are injured or deformed as a result and who are left to cope with the consequences of the provider’s wrongful acts. It would be hard to imagine a more troubling development in our law.

No-one argued that Roe gave PPA the right to perform abortions with impunity. Not that anything he says here is wrong, but Murdock thought this part up on his own.

Anyway, Mom gets to sue for the injuries suffered by Child. That is an entirely proper result. Child did no wrong in this situation. That the injuries occurred because Mom wanted an abortion may be relevant to any suit by Mom, but it has nothing to do with the harms inflicted on Child. If PPA caused the injuries, they ought to pay for the them. In sum, I think this case was actually simple, but with a bunch of red herrings. Thankfully, the court got it right.

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