April 13, 2010
Springfield, IL (April 13, 2010) -- A new Nebraska law will allow women to sue doctors for psychological injuries related to unwanted, coerced or unsafe abortions, according to the Stop Forced Abortions Alliance.
Nebraska First to Allow Women to Sue for Psychological Injury After Abortion
Doctors Must Screen for Coercion and Other Risk Factors for Abortion Complications
"This is the first law in the country that allows women to hold abortionists accountable for negligent pre-abortion screening and counseling," said Paula Talley, one of the organizers of Stop Forced Abortions. "If it had been in place in 1980, I would have been spared the years of grief, depression, and substance use which followed my own unwanted abortion."
Judicial rules normally do not allow women to sue for psychological injuries after abortion unless the injuries stem from a physical injury. The new Nebraska law is the first law in the country to eliminate the requirement that the woman must prove that psychological injuries from an abortion stemmed from a physical injury.
The law also puts into place a specific standard of care for appropriate pre-abortion screening. Abortion providers may be sued for negligence if they fail to ask a woman if she is being pressured, coerced or forced to have an abortion. They may also be held liable if they fail to screen women for other statistically significant risk factors that may put them at higher risk for psychological or physical complications following an abortion.
Research has found that as many as 64 percent of women feel pressured by others to have an abortion. In addition, one study found that even though more than half of women reported feeling rushed or uncertain about the abortion, 84 percent said they did not receive adequate counseling and 67 percent said they weren't counseled at all.
In Talley's case, she said, the pressure to abort came from her employer.
"My abortion counselor never asked if I was being pressured," Talley said. "Nor did she inquire about my psychological history. If she had, she should have known that I was at higher risk of experiencing post-abortion trauma because I had a history of depression. Plus, I had moral beliefs against abortion, but I was rushing into a poorly thought out decision because I was so filled with fear and panic.
"If the abortion counselor had bothered to ask the right questions, she would have seen that I was more likely to be hurt than helped by the abortion, But I was never warned. They just took my money, and my baby, no questions asked."
The measure easily sailed through Nebraska's Unicameral Legislature with a 40-9 majority. Nebraska Gov. Dave Heineman is scheduled to sign the bill today. The law will go into effect on July 15.
Legislators Argue Burden and Constitutionality
The law requires that abortion providers must screen women for risk factors that have been established in the research for a year or more prior to the abortion. Legislators opposing the bill argued that it would be nearly impossible for abortion providers to keep track of all the research on risks factors. The bill's sponsor, Sen. Cap Dierks, disagreed.
Dierks said that a report from the American Psychological Association found that an average of 12 studies per year are published on the subject.
"Surely it's not too much to ask abortion providers to read 12 studies per year," Dierks said. "Women rightly expect their doctors to keep up to date on their area of specialty. Why would we want the standard of care for abortion to be less than that for other medical procedures?"
Among those opposing the bill was Sen. Danielle Conrad, who argued that abortion providers are already giving women sufficient information.
"We do not need an additional layer on top of that," she said. She also argued that the bill was unconstitutional and placed an undue burden on women.
But Sen. Brad Ashford, an attorney and the chair of the Judiciary Committee that reviewed the bill, told the Legislature that the law did not raise any obvious constitutional issues because it relies only on civil remedies and does not place any burdens on women. He said that any burden caused by the screening requirements falls primarily on the abortion provider, not on the women whose rights are expanded by the bill.
State Lobbying Effort Focused on Injured Women
Greg Schleppenbach, Director of Pro-Life Activities for the Nebraska Catholic Conference, led the lobbying effort for the legislation. He said that "women deserve better than one-size-fits-all counseling?or no counseling at all."
"Ninety-nine percent of abortions in Nebraska take place in two abortion facilities," Schleppenbach said. "Their informed consent counseling consists of recorded phone messages 24 hours before the abortions and most women never see the abortion provider except during the 10 minutes or so he is doing the abortion. Women deserve better."
Schleppenbach said that the stories he had heard from women who have suffered from emotional problems after an abortion provided the impetus for passing legislation that would improve their right to redress.
"Most people don't realize that under the existing rules of law, it is essentially impossible for women to hold abortion providers liable for inadequate screening and counseling," he said. "This is why the standard of care for abortion counseling has fallen to such a dismal level. If abortion providers face no liability for inadequate screening, cost-cutting measures will inevitably lead to an assembly line process with one-size-fits-all counseling."
Twenty-Five Year Effort to Change Malpractice Laws
Dierks' bill was patterned after model legislation called the Protection from Coerced and Unsafe Abortions Act. The legislation was developed by the Elliot Institute, a post-abortion research and education group based in Springfield, Ill.
Elliot Institute Director Dr. David Reardon said that inspiration for the bill came from a 1985 article written by the group Feminists for Life.
"Feminists for Life were identifying obstacles and loopholes in the law that made it nearly impossible for women to recover damages for abortion related injuries," Reardon said. "Plus, the short statute of limitations when dealing with medical procedures meant it was likely that women injured by abortion wouldn't be emotionally ready to come forward until it was too late. The article said this was similar to cases in which women who have been raped may feel too ashamed or afraid to come forward."
Reardon, who is the author of numerous studies linking abortion to higher rates of suicide, depression, anxiety, and substance abuse, said these observations shed new light on something he had been observing in the medical literature on abortion.
"Nearly every study done on abortion and mental health, whether before or since 1985, has found that certain subgroups of women were at higher risk of negative reactions," he said. "Most of these studies have been done by pro-choice researchers, so you can't accuse them of bias. Many of the researchers openly recommend that these risk factors should be used to screen for at-risk patients so they could be given more pre- and post-abortion counseling."
One such study was published in a 1972 issue of Family Planning Perspectives, a publication of Planned Parenthood. The authors of that study found four risk factors that reliably predicted more post-abortion problems. They suggested that pre-abortion screening should be done using a short psychological profile which could be administered for less than a dollar per patient.
A similar 1977 study identified five risk factors that accurately predicted which women would have subsequent problems adjusting after abortion 72 percent of the time. But in interviewing women who were experiencing problems after abortion, Reardon found that abortion providers were ignoring the research. He was unable to find evidence that even one clinic in the country was doing evidenced-based pre-abortion screening.
Reardon said that this observation, combined with the insights from the Feminists for Life article, made him realize that the loophole in the law protecting abortion providers from liability for psychological injuries meant they could simply ignore all of the research on screening and risk factors. In fact, if proper screening led to a reduction of abortion rates among coerced and high risk women, they might actually lose money.
Reardon believes this lack of screening is an act of a medical negligence in and of itself.
"Without screening, it is impossible for a doctor to give informed medical advice," he said. "Performing an abortion on request, regardless of the risks, is contrary to both medical ethics and the law.
"If a woman walks into a doctor’s office and says, 'I have a lump in my breast and need a mastectomy,' and the doctor says 'Jump up on the table and we'll take it right out,' we don't call that medicine. We call that malpractice. Added to that, the situation with abortion is even worse because many women and girls are having abortions they don't really want, due to lack of resources and support, pressure, coercion, threats, emotional blackmail, disinformation or even force from others."
Reardon said that while Roe v. Wade created a right for women to seek an abortion in consultation with a physician, the Supreme Court also wrote that "the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician."
Reardon believes that Roe intended for doctors to be held liable for inadequate screening and counseling.
"Nebraska has now done what the states should have been doing a long time ago," he said. "They have removed the loopholes in civil law that prevent women from being able to hold abortionists accountable for the negligent screening that predictably leads to so many unwanted, unsafe, and unnecessary abortions."
Contact the Elliot Institute at 217-525-8202