New Nebraska Law Removing Obstacles
to Lawsuits for Negligent Screening Goes Into Effect
Springfield, IL (July 15, 2010) — A new Nebraska law that is the first to allow women to sue for psychological injuries related to abortion went into effect today, the Stop Forced Abortions Alliance has announced.
Until now, women who experienced psychological problems after an abortion had no standing to sue abortionists for subsequent psychological problems, even when the women were coerced into unwanted abortions. The Nebraska law removes that legal obstacle and also clarifies the standard of care for appropriate pre-abortion screening.
Enactment of Law Survives First Court Challenge
Nebraska’s Planned Parenthood affiliate filed suit in federal court last month seeking an injunction and declaratory judgment that the law was unconstitutional. In a preliminary ruling issued yesterday, the federal district court ruled that neither the effective date of the bill nor the law itself could be enjoined, clearing the way for the law to go into effect July 15.
District Judge Laurie Smith Camp also rejected Planned Parenthood’s motion to strike the legislature’s finding of fact that was included in the law, which states that “the existing standard of care for pre-abortion screening and counseling is not always adequate to protect the health needs of women.”
However, the court did grant a preliminary injunction to protect Planned Parenthood and its employees from any criminal penalties, fines, or loss of license in the event they fail to provide the standard of care required by the law. This does not effect women’s ability to sue for negligent screening or psychological damages while the injunction is in effect.
Specifically, the injunction prohibits the state attorney general, the governor, and other officers of the state from seeking to use the new law as a basis for revoking the licenses of abortion clinics or for engaging in other disciplinary measures against clinics or their staff.
Proponents said the law was never intended to provide for prosecution by state authorities, but was simply meant to allow abortion patients or their survivors to more easily hold abortion providers accountable for negligent screening. That aspect of the law has not been affected by the ruling.
Number of Coerced Abortions Expected to Drop
A key aspect of the law is that it exposes abortion providers to lawsuits for negligence if they fail to ask a woman if she is being pressured, coerced or forced to undergo an unwanted abortion.
This could affect many women, as one study found that 64 percent of women who had abortions reported that they felt pressured by others to do so. Numerous studies have also shown that women who are pressured to abort are at much higher risk of experiencing psychological complications following the abortion.
While the new law does not ban abortions in such cases, supporters say it will give women who are being pressured or coerced an opportunity to discuss the situation and receive information about how coerced and unwanted abortion increases their risk of more severe post-abortion reactions. Supporters believe this new standard for screening and counseling will help prevent many unwanted abortions.
Paula Talley, an organizer of the Stop Forced Abortions Alliance and backer of the bill, believes having such a law 30 years ago would have prevented her from undergoing an unwanted abortion.
“If this law 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,” Talley said. “My abortion counselor never asked if I was being pressured, nor did she inquire about my psychological history. If she had, she would have known that I was at higher risk of experiencing post-abortion trauma because I had a history of depression.”
Talley said that she was being pressured to abort by her employer, an issue that was never addressed by abortion clinic staff. Although she had moral beliefs against abortion recognized by researchers as a risk factor for psychological problems after abortion–feelings of fear and panic made her feel she had to undergo the abortion.
“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,” Talley added. “But I was never warned. They just took my money, and my baby, no questions asked.”
Neglected Feature of Roe v. Wade Will Be Easier to Enforce
Supporters of the negligent screening law also say that it helps to eliminate legal obstacles that allow women to hold abortion providers properly liable for failing to give them medically sound advice.
Dr. David Reardon, a biomedical ethicist and director of the Elliot Institute, a post-abortion research and educational organization, said that abortion providers have often shirked their duty to provide each woman with an informed medical opinion that is appropriate to her unique case.
“Any counseling provided by abortion clinics is often ‘one-size fits all,'” Reardon said. “That’s very inappropriate, since each woman has circumstances and risks that are unique to her.”
Reardon, who has done extensive research regarding post-abortion complications, believes inadequate screening is an act of medical negligence.
“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 stated principles found in Roe v. Wade.”
He pointed out that “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.”
Reardon also said out that many abortion facilities appear to ignore the fact that many women are pressured or coerced into undergoing unwanted abortions to satisfy the demands of boyfriends, husbands, parents, employers, or even their doctors or counselors.
“Many women report that their abortion counselors sided with an abusive partner or parent in pushing them to have an unwanted abortion,” he said. “Without this new law, women in such cases have little or no prospect of ever holding abortion clinics accountable for such egregious behavior.”
In short, Reardon believes the Nebraska law will clarify a neglected principle found in Roe v. Wade. While Roe determined that women had a right to seek an abortion in consultation with their physician, the Supreme Court also ruled 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 said this means doctors have an obligation to protect women from unwanted, unsafe, and unnecessary abortions.
“This goal can only be accomplished by removing the legal barriers that prevent women from holding doctors properly liable for inadequate screening and counseling,” he said.
The Elliot Institute is dedicated to conducting original research on the impact of abortion on women and to promoting efforts to create a safe, healing environment for those struggling with a past abortion. The Stop Forced Abortions Alliance is a project of the Elliot Institute.