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Medical Malpractice Shields Protect Doctors Who Lie To Women

This week has seen some of the most horrific assaults on women's rights and health care for women in decades...

Women's Health protester

This week has seen some of the most horrific assaults on women's rights and health care for women in decades.

On Wednesday, David Edwards reported on a new measure that passed the Arizona senate that effectively bans abortion after 18 weeks of pregnancy, and can consider a woman to be pregnant 2 weeks before she has even had sex.

Then on Thursday, new restrictions appearing in anti-choice bills around the nation allow for doctors to lie to their female patients if doing so will help them to prevent an abortion.


In both Kansas and Arizona measures are advancing that exempt doctors from medical malpractice suits should they withhold medical information in order to prevent a woman from having an abortion. These bills also shield doctors from malpractice claims if a woman suffers an injury from a pregnancy as a result of information withheld from her to prevent an abortion. Georgia just snuck a liability shield into their 20-week abortion ban. We can expect more to follow.

Proponents of these "wrongful birth" bills argue they are necessary to stem the tide of lawsuits like one in Oregon where parents sued for costs related to the care of their daughter who was born with Down's Syndrome. In that case the parents argued that the medical professionals were negligent in conducting the genetic testing, and that had they known their daughter would be born with a disability, they would have had an abortion.

In practice this means that instead of an objective inquiry into the medical treatment and advice given to a pregnant woman based on what the profession as a whole considers competent medical treatment, the individual beliefs of the doctor will determine if advice given or care rendered was reasonable. In legal terms that changes the inquiry from objective to subjective meaning; there is no real basis to judge conduct against. It will no longer matter what a doctor’s peers believe to be considered good medical care: it will only matter if that particular doctor thought the care would avoid an abortion.

That also means that women in states with wrongful birth bills can never be sure the medical information they are receiving is accurate and unbiased, nor can they sue in the event that its wrong or negligent. And that women in states without these bills will have to exercise even more caution and be even greater advocates for their own care as what constitutes good accepted medical practice is no longer easily determinable.

This goes against the grain of the medical profession's modern Hypocratic Oath that says "Above all, I must not play at God," and tosses true "Informed Consent" out the window. As RH Reality Check puts it "Pregnant women will, in effect, be returned to the same legal standing of juveniles or persons under legal guardianship and conservatorship, devoid of the ability to consent to a full course of medical treatment on their own."

A boon for bad doctors, this shield for medical malpractice "strips women of the ability to be compensated for sub-standard medical care rendered to them while pregnant and nothing more." And while right-wing Republicans insist that there is no war on women, the evidence is in the efforts to pass legislation like the medical malpractice shield that essentially says that women's lives have no value, as that is what taking away your right to bring a claim based on the value of that life does to women.

This is absolutely war. Defend your rights, or risk losing them.

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