Usually, tort law doesn’t allow for recovery of damages for emotional distress unless it is the result of physical injury. This means that a woman experiencing psychological problems after an abortion cannot sue the abortionist, even if he or she knew that woman was more likely to suffer post-abortion problems.
These new pieces of legislation would close this loophole. For example, as described by Iowa’s Globe Gazette, state senator Mark Chelgren’s bill:
… seeks to establish legal recourse for a woman who suffers any emotional distress independent of a physical injury that she alleges was the result of a physician’s “negligence or failure to obtain informed consent prior to performance of the abortion.” The bill’s provisions would not apply to situations where an abortion was performed due to a medical emergency.
Under the proposal, legal action seeking to recover damages could be brought against a physician at any time during the woman’s lifetime and indicates that her signing a consent form detailing the procedure’s risks would not negate the civil cause of action but could reduce her damage recovery.
The Iowa bill has been approved by a Senate subcommittee and now goes on to a Senate Judiciary Committee for a vote. Chelgren told reporters that the bill follows provisions set forth in Roe v Wade that allows states to enact legislation that protects the physical and mental health of women who undergo abortions:
I want to make sure that we protect mothers and protect women from all sides of the equation. …It’s a question of whether or not somebody who in good, healthy mind is sold a bill of goods that turns out to be something that it’s not. When someone is under a lot of stress and they’re making decisions, we need medical professionals who are looking after their best interests and not looking after how much money they can make off of them.
In addition, a Florida bill approved by a House Committee earlier this month expands the window in which women who suffer physical or emotional injury after abortion to file a lawsuit for malpractice. Current law gives women two years to sue, but the new bill would give them 10.
Rep. Erin Grall said that women need more time because they may not recognize that they have been injured until years later. “This is especially true of the psychological issues which may develop over time, or be underlying and triggered by a later event in life,” she said.
Indeed, research has shown that there is often a long period of time, sometimes years, before women recognize psychological distress or seek psychiatric care after abortion. For example, a survey of women in post-abortion counseling groups found that on average, 10.6 years had elapsed since the woman’s abortion. Further, these repressed emotions can cause psychosomatic illnesses and other disorders. Some counselors report that unacknowledged post-abortion distress can be an underlying factor in other problems, and that patients often come to therapy for seemingly unrelated problems.
The Loophole That Puts Women at Risk
Elliot Institute director Dr. David Reardon pointed out that the requirement that women must also suffer physical injuries in order to file a lawsuit “means that abortionists feel free to perform abortions regardless of the risk to a woman’s psychological health because they know they won’t be held responsible for any harm this might inflict.”
“Because of this loophole in the law, abortionists don’t screen patients for known risk factors that increase their chances of suffering psychological harm after abortion,” he said.
Indeed, research has consistently shown that there are certain groups of women who are most vulnerable to negative reactions to abortion. Reardon points to the 2008 Report of the American Psychological Association Task Force on Mental Health and Abortion, issued by a group of psychologists who support abortion. The report listed 15 risk factors which can be used to identify the women who are at greater risk of psychological problems after an abortion:
- “terminating a pregnancy that is wanted or meaningful”
- “perceived pressure from others to terminate a pregnancy”
- “perceived opposition to the abortion from partners, family, and/or friends”
- “lack of perceived social support from others”
- “low self-esteem”
- “a pessimistic outlook”
- “low perceived control”
- “a history of mental health problems prior to the pregnancy”
- “feelings of stigma”
- “perceived need for secrecy”
- “exposure to antiabortion picketing”
- “use of avoidance and denial coping strategies”
- “feelings of commitment to the pregnancy”
- “ambivalence about the abortion decision”
- “low perceived ability to cope with the abortion prior to the abortion”
Reardon stated that “the vast majority” of women undergoing abortions have one or more of these risk factors.For example, approximately 64 percent of women with a history of abortion report that they felt pressured by one or more people to do so. In addition, approximately half of all women aborting on any given day have a prior history of abortion. Further, about 15 percent of abortions are for adolescents, and about 8 percent of abortions are after the first trimester.
“Throw in the need for secrecy, ambivalence, or any of the other 15 risk factors acknowledged by the APA, and it’s clear that most women having abortions have two or more of these risk factors,” Reardon said.
The Need for Screening
Reardon also said that this pointed to the need for women undergoing abortions to be screened for risk factors.
“Everywhere else in medicine, doctors screen for risk factors, precisely to identify those subgroups of patients for whom a possible treatment option may be contraindicated or is unlikely to produce the desired benefits,” he said. “For example, pre-surgical screening for Lasik patients results in about 25 percent of them being declined for the procedure because of the doctor’s judgement that it will not benefit them. Yet abortionists routinely perform abortions on women with multiple risk factors for complications.
“In fact, abortionists will typically deny any responsibility for determining if an abortion is more likely to benefit or harm a woman’s well being. They insist they are not social workers. The choice is the woman’s alone and they are just there doing her bidding.But such a ‘buyer beware’ medical service is an inversion of normal medical ethics.”
He added that “simply doing what a patient asks for, without any evaluation of risks or options, is not the practice of medicine — it is medical malpractice.”
To combat this, the Nebraska law also put into place a specific standard of care for appropriate pre-abortion screening. Abortionists 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.
The Nebraska statute incorporated parts of the Elliot Institute’s model screening legislation, which holds abortion clinics accountable for failing to screen women for coercion and other factors that put them at risk for psychological problems after abortion.
Paula Talley, who had an abortion in 1980 and is now part of efforts to get such legislation passed, said that such a law might have prevented her from being coerced to have an abortion.
“My abortion counselor never asked if I was being pressured,” she 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.”
1. Kent, et al., “Bereavement in Post-Abortive Women: A Clinical Report”, World Journal of Psychosynthesis (Autumn-Winter 1981), volume 13, no’s 3-4.
2. Cohen, Susan A. Repeat abortion, repeat unintended pregnancy, repeated and misguided government policies. Guttmacher Policy Review 2007 10(2):8-12.
3. Centers for Disease Control and Prevention. (2013, November 29). Abortion Surveillance–United States, 2010 (see Tables 3 and 5).
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