Copyright 1996 David C. Reardon. Excerpted with permission for from Making Abortion Rare, published by Acorn Books, PO Box 7348, Springfield, IL 62791-7348 for internet posting exclusively at www.afterabortion.org. All Rights Reserved.

>>> Click here for copies of our model legislation described in this chapter.
 

The previous five chapters have outlined the obligations of abortionists and the rights of women as defined by the Supreme Court, professional medical standards, and common law. Some of these arguments can and have been made in medical malpractice suits against abortionists. Even without new state and federal laws, these arguments will be made by malpractice attorneys who hope to develop case law in favor of women who have been injured by abortion. But this process of developing case law is slow and difficult, and it excludes the vast majority of women who are presently suffering post-abortion sequelae. Therefore, to accelerate this trend, federal and state laws should be passed to codify these standards and solidify these judicial precedents which will seal the abortion industry's fate. 

Furthermore, the pursuit of this pro-woman legislation will advance our educational objectives. Debate over pro-woman legislation will increase public awareness of post-abortion injuries and provide a vehicle for building common ground with the middle majority. It is also a political opportunity to separate pro-abortion legislators from their pro-choice supporters who will see them opposing women's rights in order to protect the abortion industry. This debate will also serve as an opportunity to reshape the public's perception of the pro-life movement showing that we are concerned about the health and well being of women both before and after abortion. 

The long and short of it is simply this: the abortion industry thrives on providing cheap abortions on demand knowing that very few women will succeed in suing them for physical or emotional injuries. Once abortionists become truly liable for making the abortion recommendation, and truly liable for the physical and emotional injuries which their abortions cause, they will come to the conclusion that abortion is not only bad medicine, it is also bad business. 

Strategic Goals In Formulating Legislation

Pro-woman/pro-life legislation is first and always centered on advancing women's rights and increasing the accountability of the abortion industry. Even in the drafting of the legislation, we must carefully keep this focus while also seeking ways to eliminate, or at least minimize, opportunities for our opponents to pose as defenders of women. 

Our goal is to leave opponents with only one complaint: our pro-woman legislation is simply too burdensome on abortion providers. Without protection from liability for abortion complications, they will complain, the abortion industry will be forced to shut down, and therefore women will "suffer" because they are being denied abortions. 

To this complaint we will offer a five point response: 

(1) Isn't the real suffering of a woman who has been hurt by abortions just as important as the potential "suffering" of a woman who gives birth to an unplanned child? 

(2) Our legislation simply gives women a voice in determining if abortion is or isn't safe. We are simply freeing market forces to push the abortion industry into adopting the appropriate standard of care which maximizes safety and minimizes liability. 

(3) If abortion is as safe as its proponents claim, our legislation will have no effect. It will only cause fewer abortions to the same degree that it is dangerous. Only if abortion is very dangerous, will it become very rare, in which case women would clearly benefit from fewer dangerous abortions. 

(4) Even if it does turn out that abortion is too dangerous to be used in most cases, women will still be free to seek it and doctors will still be free to recommend it. The only difference is that our law will encourage doctors to recommend safer options whenever they are available. 

(5) Our law merely codifies the standards established by the Supreme Court in Roe and the subsequent abortion cases. Supporting the right of women to hold physicians liable for abortion related injuries is the only effective way of making sure legal abortions are safe abortions. 

Legislative Initiatives

The following sections describe some of the major features of model legislation developed by the author which has been introduced in the state of Illinois. These features should be read in the light of the previous five chapters which show why these features properly fit with precedent and will dramatically expand the rights of women and the corresponding liability of abortionists. Enforcement of these provisions is almost exclusively through civil redress. 

In drafting this legislation, I have been especially aware of the three primary arguments which are used against standard informed consent statutes. These are: 1) The waiting period after disclosure presents an onerous burden to some women; 2) State mandated lists for disclosure force physicians into giving women inaccurate or irrelevant information which is simply intended to "scare" women; and 3) Most women already have access to all of the information they need and have already made up their minds. Our legislation eliminates, or makes irrelevant, all three of these objections. 

Minimum Insurance Requirements

To protect the rights of patients in the event of an injury, proof that the physician has adequate malpractice insurance, in the three to five million dollar range, is required to receive a license to practice medicine. This prerequisite could be established only for physicians practicing abortion (who are notorious for "going bare") or for all physicians. To be adequate, the insurance policy would need to cover not only negligence, but also other potential causes for a suit regarding abortion, such as a violation of the woman's civil rights. 

Justification of this provision for licensing is straight forward. If a physician does not have adequate malpractice insurance, a woman would be denied the right to recover damages simply because no lawyer can afford to take her case since there would be no guarantee that sufficient assets would be available to pay the award. Furthermore, the lack of malpractice insurance, or "going bare," is simply unprofessional. No hospital allows admitting privileges to physicians without adequate malpractice insurance. 

The abortion industry should be held to the highest of professional standards; it should not be allowed to become a collecting pool for misfits who have otherwise been unable to establish a professional practice. Proof of adequate insurance coverage would be required each year when physicians renew their medical licenses and drug prescription licenses. 

Full Disclosure as a Civil Right

Our legislation codifies a woman's right to all information relevant to her decision to accept a physician's recommendation. In drafting such legislation, care has been taken to avoid the appearance that State mandated requirements represent anything more than a minimum standard. Abortion providers are expected to provide any additional information which a reasonable patient might consider relevant, including newly published research findings, photographs or videos of the developing human fetus at various stages of gestation, and especially information which is uniquely pertinent to a particular woman's health needs. While avoiding vagueness, disclosure requirements should be broad enough to allow juries to continue to expand the standard of "relevant" materials as specific cases are brought to trial. 

A key feature of our pro-woman legislation provides that if a plaintiff can demonstrate a lack of either full disclosure or voluntary consent, this is a violation of the woman's basic civil rights for which she shall be awarded damages of not less than $200,000 and not more than $2,000,000. She does not have to show any other injury. Nor is she required to show that the non-disclosed information would have changed her mind. Furthermore, the cause of action, in such cases, is not one of medical malpractice, which is always difficult to litigate, but is instead a violation of her civil rights which, because her consent was invalidly obtained, culminated in unlawful touch, which is battery. 

This base award for violation of a woman's civil rights, of course, can be increased further if physical or psychological injuries are shown to have occurred. But this base award establishes sufficient monetary incentive for attorneys to accept and litigate abortion cases. 

Extended Statute of Limitations

Perhaps the most important step in holding abortionists liable for abortion related injuries is the need to extend the statute of limitations for filing a suit. The period for filing should not begin until such time as the woman discovers that she has experienced an injury resulting from the abortion and has recovered from the injury sufficiently enough to properly pursue her case. This latter provision is very important because there can be a prolonged delay before reproductive damage, cancer, or psychological injuries become apparent. 

The precedent for an open ended statute of limitations for psychological injuries exists in the case law for victims of child molestation. Under these precedents psychologically injured persons have been allowed to sue for damages which were incurred several decades previously. These exceptions to the normal statute of limitations exist because the law recognizes that injuries suffered may create a psychological disability which makes it impossible for a victim to seek damages until after that victim has achieved psychological recovery. 

In the case of abortion related trauma, this psychological disability may include very long periods of denial and repression. In an Elliot Institute study of 260 women, 62% of women who reported post-abortion problems experienced a period during which they would have denied the existence of negative feelings resulting from the abortion.⁽¹⁾ This period of denial lasted, on average, slightly over five years, with many reporting symptoms of denial lasting over a decade. 

This same study, and others, show that women may also experience disabling levels of shame and anxiety when confronted with anything to do with abortion. Such feelings may result in avoidance behavior. This disability, avoidance behavior, can severely limit a woman's ability to defend her rights. Thus, a woman be so overcome with shame that she is unable to confide in a lawyer, much less confront her abortionist, even if she has experienced severe physical injuries. Alternatively, even if she does initiate legal action, she may experience an abnormal onslaught of anxiety reactions which may prevent her from continuing with or cooperating in the suit. According to the same Elliot Institute study, women who experienced post-abortion sequelae report that it takes, on average, 7.5 years before they can even "begin to reconcile" themselves to the abortion experience. Until this time, it may not be possible for them to effectively exercise their right to pursue a malpractice claim. 

Extending the statute of limitations until after there is sufficient recovery from an abortion created disability is not only a fair consideration to a patient's rights, it is also good consumer protection policy. Since the risk of psychological sequelae can easily be pre-identified using known risk factors, proper liability for long term psychological injuries would dramatically improve the quality of pre-abortion screening and informed consent procedures. No physician wants to risk being sued by patients they treated ten or fifteen years ago. Therefore, physicians who use abortion in their treatment regimen will be very careful in pre-screening their patients and ensuring that they are fully informed of all its attendant risks. 

Liability for the Abortion Recommendation

Our pro-woman statutes clearly reiterate Roe's finding that abortion is "inherently, and primarily, a medical decision." In the event of a subsequent lawsuit, the abortionist can and should be held accountable for having formed a basis for "his medical judgment [that] the patient's pregnancy should be terminated." In defending themselves in civil action, abortionists would be required to document the basis for their recommendations to abort given a woman's particular health needs, circumstances, and psychological risk profile, especially in relation to alternative options for managing the woman's psychosocial crises. An inability to justify his choice for the recommended treatment, would be considered sufficient to establish negligence. 

We believe that this issue, that an abortion must be recommended by a physician as the preferred treatment option, will be an important one in many jury decisions. Conversely, the law must also be clear in restating the physician's right and duty to refuse to provide an abortion which in his best judgment, given each patient's physical, psychological, and social circumstances, would be injurious to her health. This aspect of the law, too, will be relevant to jury deliberations. 

Screening for High-Risk Factors

Prior to making a recommendation for abortion, physicians would be required to properly screen patients for any characteristics which would predict that the patient is at risk of experiencing physical or emotional harm after the abortion. The physician would be legally and ethically bound to consider these risk factors in forming a recommendation, to advise the woman of the existence of these risk factors, and, in at least some cases, to refuse to perform an abortion until these risk factors had been alleviated through appropriate counseling. An inadequate evaluation of a woman's medical needs and psychosocial condition would be considered sufficient to establish a finding of negligence. 

In essence, our pro-woman bill establishes a two tier process of disclosure. There is standard disclosure, according to the reasonable patient standard. But if screening discloses any high risk factors, the abortionist is expected to provide additional counseling above and beyond the normal standard, or refer the patient to a third party, in order to: 1) alleviate these predisposing risks, 2) to discover a safer course of care, or 3) to document and certify why the abortion is recommended over other options for crisis management. 

This touches on another political benefit of this bill compared to traditional informed consent bills. Our bill recognizes that each woman is unique in her needs and relative risks. It simply requires clinics to treat each woman accordingly, which they claim to be doing already. Indeed, one of the pro-abortionist's standard arguments against reading off a State mandated laundry list of risks and alternatives is that such lists do not respect the unique circumstances of each patient. This bill accepts their argument, and insists that they live up to their own idealized standard for individualized counseling and accept legal liability when they do not. 

Burden of Proving Adequate Disclosure

In the event of a lawsuit on the basis of lack of informed consent, the burden of establishing the sufficiency of the disclosure should fall on the physician. Video taped recordings of the pre-abortion counseling would be advised, a copy of which should be given to the client. Furthermore, the failure to disclose potential complications, which did in fact occur, should be considered presumptive evidence that either: 1) the physician negligently evaluated the patient, 2) the physician was incompetently ignorant of risks which should have influenced his recommendation, or 3) the physician deliberately withheld relevant information in order to guide the patient toward his own pre-determined choice. 

In addition, if a pattern of inadequate disclosure with patients can be established, this may be construed as evidence that the physician was involved in deceptive trade practices, in which case the plaintiff may be entitled to triple damages. 

Here it is worth noting that if the courts were to decide that there must be a better defined standard for determining what risks must be disclosed, a two-study rule, patterned after an FDA standard, could be mandated. According to this FDA standard, if any two studies link a substance to cancer, the substance must be listed as a potential carcinogen. These studies can be drawn from international literature and can include studies on animals. In the case of abortion, this same standard could be adopted requiring disclosure of any complication reported in two or more studies as potentially associated with abortion. The adequacy of the studies would not be at issue. The relevant point is simply that a patient might have a reasonable basis, drawn from at least two studies, for believing that the reported complication may be related to abortion. 

Sufficient Reflection Time

A major objection to standard informed consent laws is that 24 or 48 hour waiting periods represent a substantial burden to women who are required to make two trips to the abortion clinic. They argue that most women have already had adequate time to consider their decision and already know all that they need to when they arrive. Rather than argue with them, we once again not only give them what they want, but more than they want. 

Our model legislation requires that the abortionist must simply certify that the woman has had "sufficient reflection time." Our definition states that "sufficient reflection time" normally requires no less than 24 hours, but that even this period for reflection can be waived if the abortionist certifies that the patient has demonstrated adequate maturity, possessed prior knowledge of all the information which she has been given, and has already given the information due consideration. 

The catch is this: if the abortionist provides an abortion with less than 24 hours of reflection time, then in the event of a suit for lack of informed consent, the abortionist is liable for triple damages. He would also face the additional burden of proving the appropriateness of his decision with evidence establishing that the patient was mature and had adequately considered all the relevant information, and therefore did not require additional reflection time. 

Politically, this solution defuses all of the objections to a mandatory waiting period. Here, nothing is mandatory, except good medical judgment. The right to "sufficient reflection time" is already part of the common law interpretation of informed consent procedures. This law simply states that for a complex decision such as abortion, this period of reflection time normally requires at least 24 hours. However, because the state "respects" their medical opinions, abortionists are free to waive even this nominal period for reflection, if they are willing to accept greater liability allowing a rushed decision. Obviously, because their chief concern is money, they will not accept this increased liability. Instead they will voluntarily choose to require a 24 hour period for reflection. 

Another advantage of this approach is that the standard for "sufficient reflection time" is related to maturity and intellect of the particular patient. In the event of a subsequent suit, this leaves the door open for another charge of negligence. Specifically, a plaintiff's attorney may be able to show that for a particular woman whose cognitive abilities were impaired by low intelligence, immaturity, or emotional stress, the requirement for "sufficient reflection time" might require two weeks rather than only 24 hours. Again, since the burden of evaluating the patient's understanding of the disclosed information rests on the physician, the abortionist becomes liable for defending the basis for his opinion that the woman had "sufficient reflection time." 

Abortionists' Responsibility for Brochures

Informed consent laws in most states have sought to guarantee disclosure by mandating that women receive a brochure prepared by the State describing fetal development, risks of abortion, and alternatives. Typically, these brochures have been prepared by the state's department of public health. 

This approach has been fraught with difficulties. First, the writing of these brochures has been highly politicized. In some cases, pro-abortion bureaucrats have actually attempted to use the law to benefit the abortion industry by exaggerating the dangers of childbirth while understating the risks of abortion. Still another problem with these brochures is that their very existence tends to shift responsibility for disclosure from the physician to the State. Defense attorneys for the abortionist can argue that provision of the "official" state prepared brochure satisfies all of the abortionist's responsibilities for disclosure. 

Our legislation avoids these pitfalls. First, we emphasize that a brochure is required as an aid to disclosure, but it is not a substitute for full disclosure, which may vary from case to case, and that in every instance the adequacy of the disclosure must be certified by the attending physician. 

Second, each clinic is free to prepare its own disclosure brochure, or it may purchase copies from a third party, which might be from either a pro-abortion source or an anti-abortion source. In any event, the abortionist is individually liable for ensuring the adequacy of the contents and for supplementing or updating the contents with additional printed materials. 

In the brochure, itself, only general topics are mandated: "Your Legal Rights," "Resources To Help You," "Development of the Human Fetus," "Risks Which May Be Related to Abortion," and "Characteristics Which May Place You at Higher Risk." Abortionists are free to fill in these sections in whatever way they feel is accurate and sufficient, knowing that they are also completely liable for the accuracy and sufficiency of their statements. The only exception is the section on legal rights where the law mandates very specific statements regarding the physician's obligations and the woman's rights, including her right to sue for any lack of full disclosure or other violations of her rights. In the event of a suit against the abortionist on the basis of inadequate disclosure, a jury would use the reasonable patient standard to judge the adequacy of the abortionist's disclosure document. 

Politically, this approach robs pro-abortionists of the arguments that 1) the State is incompetent to give medical advice and 2) doctors should not be "forced" to recite a list of risks developed by state bureaucrats which may be inaccurate or outdated. Both charges are true. Therefore, our approach gives them complete freedom regarding specific content, but also makes them totally responsible for full disclosure. In essence, we ensure quality not by dictating the exact contents of disclosure but by increasing the liability risks for inadequate disclosure. 

In practice, the safest way for abortionists to minimize liability will be for them to give more information than necessary, which is as it should be. Indeed, because they will actually be held liable for the contents of their brochures, they will be far more motivated to provide full disclosure than would public health officials who are subject to political pressures. 

The Abortion Information Depository

To assist both abortionists and plaintiffs' attorneys, our model legislation requires the State department of public health to maintain an Abortion Information Depository. Anyone, in particular those who believe abortion has risks, or who offer safer alternatives, can deposit date-stamped information and data which should be available for consideration by patients seeking abortion. The legal presumption will be that abortionists are familiar with the materials in the depository. 

In the event of a lawsuit the clinic prepared brochure can be compared to the contents of the Depository. The jury would then decide if there is anything in the Depository which a reasonable patient would have found relevant to her decision but was not disclosed. If so, the plaintiff has made her case. 

Certification of Voluntary Consent

Abortion providers would be held legally responsible for certifying that a woman's choice to have an abortion is totally her own and that she is not being pressured into this decision by others. If abortion clinics fail to properly screen their patients for signs of coercion, they have been negligent. Furthermore, if a women can later show that an abortion counselor added to the pressures which made her feel she "had no choice," or did nothing to protect her from being pressured into an unwanted abortion, the clinic would be held accountable as an "accomplice" in the crime of pressuring her into an unwanted abortion. 

Liability for Wrongful Death

If a plaintiff's testimony establishes that her pregnancy was in any way wanted, or conversely that the abortion was in some way unwanted, such testimony shall entitle the woman to seek damages for wrongful death - a claim which can entail multi-million dollar awards. There are several reasons for this. 

First, if the pregnancy was wanted, the abortionist failed to intervene to protect the woman from the individuals or circumstances which were making her feel forced to undergo an unwanted abortion. This in turn demonstrates that there was failure in the process of screening, counseling, and consideration of alternatives better suited to the woman's desire to keep her wanted pregnancy. 

Second, if one accepts the pro-choice position that "personhood" attaches to the unborn child only when the woman mentally decides that she wants or loves the child, then a child who is killed during an unwanted abortion is a person of value. While it is possible that a mother could feel forced to consent to the killing of her wanted child, it is impossible that she could freely consent to such an act. Therefore, no matter how dire the circumstances, if the woman believes that she is aborting "her baby" as opposed to "fetal tissue" she is losing a loved one and should have been protected from this loss. 

Third, contrary to popular notions, the Supreme Court never ruled that human life does not begin at conception. Instead the Court has decided that "difficult question of when human life begins" cannot be resolved by the mandate of the State, therefore the State may not "override" the rights of a woman by "adopting one theory of life."⁽²⁾ In other words, the Court has insisted that the subjective views of the individual woman take precedence over the views of the State, at least up until the point of viability in the third trimester.⁽³⁾

Clearly, if a state legislature may not impose one legal theory regarding the beginnings of life women, then neither can state courts. It is improper, then, for a civil court do deny a mother the right to seek damages for wrongful death of her unborn child. Such a ruling would improperly restrict the rights of a plaintiff by imposing "one theory of life" upon them. Instead, if the subjective standards of Roe are to be consistently applied, a woman should always be entitled recovery for the wrongful death of her unborn child if she can provides testimony that the abortion occured after such time as she subjectively believes human life begins. Her charge of wrongful death would be further substantiated by testimony regarding factors which made her feel forced into an unwanted abortion or evidence showing that she was denied information which would have changed her mind. In short, if we are to be ruled by a subjective view of when human life begins, then this subjective view must operate both ways--both to allow for abortion and to allow for charges of wrongful death. 

Finally, women who have had abortions who subjectively believe that the aborted child was a being of value are confronted with a high risk of developing psychological sequelae. This one risk alone should be sufficient to deter a responsible physician from performing an abortion.⁽⁴⁾ In such cases, then, compensation for wrongful death is fair because the emotional pain and suffering of a mother who loses a wanted child to abortion may be just as great as the suffering of a mother who loses her child to a careless driver. 

If capricious and tyrannical courts refuse to allow awards for wrongful death, legislation should be sought which would set generous minimum levels of compensation for the emotional pain and suffering which results from an unwanted abortion. 

Withdrawn Consent

It is not uncommon for patients immediately before or during the abortion procedure to get "cold feet" and withdraw consent. In interviews with 300 Australian women, psychologist Lawrence Fulton found that three of every four tried to stop the abortion at the last minute. Fulton attributed this finding to pre-surgical anxiety-reducing drugs which allowed deeper feelings of ambivalence to surface. 

In many of these cases, patients have been inaccurately told that "it's too late" and the abortionist will insist on continuing with the procedure. In other cases, the physician will momentarily pause but pressure the woman to make up her mind in haste: "Get on the table now, or get out!" 

Because even a temporary withdrawal of consent is clearly an indication that the patient is experiencing deep and unresolved conflicts about her decision, continuing an abortion, in such cases, is inappropriate and irresponsible.⁽⁵⁾ In such cases, the abortion should not be resumed or rescheduled until the woman has received more extensive screening and counseling and has had additional, unpressured time to reflect on her decision and resolve her conflicting feelings. If the abortion has already begun, the abortionist would be required to cease the operation and transfer the patient to a hospital for evaluation and treatment by another physician to determine if the pregnancy can be saved. 

Payment Procedures

It is common practice in the abortion industry to obtain payment for the abortion in advance. This requirement for upfront payment is unheard of in any other medical practice and is clearly unprofessional. It is also potentially coercive in that it may deter women from changing their minds for fear of not getting their money back. 

According to our model legislation, a woman's consent to abortion is voluntary only if she is not required to pay any amount for the abortion procedure, or pre-abortion counseling, until after the procedure has been completed. Abortion provider's may, however, request proof of an ability to pay before providing any services. If after screening and counseling the woman decides against recommendation for an abortion, she would be liable for no more than $50 in counseling and surgical preparation fees. 

Reporting of Cases Involving Potential Child Molestation

Whenever a person seeking abortion is a minor the abortionist would be required to determine if the pregnancy did result, or may have resulted, from an act of incest, forcible rape, or statutory rape. If there is reason to believe that the pregnancy is a result of one of these criminal acts, the abortionist would be required to report the case to the appropriate law enforcement officials and child protection authorities. 

This provision is especially important to protect minors from exploitation by older males. According to one study of 29 babies born in 1992 to 10 to 14 year olds in Kansas, 20 (69%) of the fathers were over the age of 18. Similarly, of 937 babies born to girls 15-17 years of age, 781 (83%) were fathered by adults over the age of 18. Clearly, the State has a public policy interest in prosecuting adult males who prey on minors. 

In addition, child protection authorities may need to investigate home environments where fourteen year old girls are dating 20 year old men for evidence of negligence. As Linda Martinez, who brought these statistics to my attention, comments: "If parents accepted money for allowing a man to have sexual intercourse with their young child, they would be charged with several crimes. But when they allow it at no charge, is it okay? No, it's not okay. It's neglect! Parents may not be able to prevent it ahead of time, but if they refuse to cooperate with law enforcement after the fact, they should face neglect charges themselves." 

Linda also suggests that statutory rape and indecent liberties with children laws should be modified in a manner similar to laws against spousal abuse. These modified laws allow prosecution without the cooperation of the victim. Prosecution should not be stymied simply because the girl refuses to cooperate, whether out of fear of the abuser, or because she loves her seducer. This is especially true in the event that the minor becomes pregnant. Whether the child is born, or aborted, blood tests can be used to establish paternity which should be entirely sufficient for obtaining a conviction. 

This law not only would provide an effective means for intervening on behalf of a young girl who is being sexually exploited, it may also provide her with the opportunity to escape from an unwanted abortion. This is especially important because minors are more likely to be coerced into unwanted abortions, especially in cases of incest. Furthermore, a vigorous prosecution of statutory rape charges, combined with financial liability for the child and the young mother, will deter the victimization of minors and may ultimately do more to reduce births among minors than other state programs which simply promote contraception and abortion. 

Expert Testimony

Our legislation also expands the right of plaintiffs attorneys to call upon expert witnesses outside of the abortion industry. Specifically, the statute distinguishes between the technical-medical aspect of induced abortion and the separate issues of screening, counseling, disclosure, and making a medical recommendation. With regard to the latter, physicians or qualified persons who provide care for women in crisis pregnancies would be allowed as expert witnesses. With regard to the technical-medical process used for the induced abortion, any physician skilled in D&C, D&E, evacuation techniques, instillation, prescription of labor inducing drugs, or other medical techniques which are substantially similar to the method employed for the induced abortion at issue, would be allowed to testify as an expert. The testimony of a board certified obstetrician-gynecologist would normally be allowed as expert testimony. 

Liability for Referrals

Any physician, health care worker, or family planning agency which makes referrals for abortion would be held as jointly liable for all of the obligations of this law. Any party who makes referrals to an abortionist outside of the State would be solely liable for all provisions of our statute, including the requirements to guarantee full disclosure, voluntary consent, and adequate reflection time. Finally, any abortion provider advertising in the State should be considered as doing business in the State and would be held liable for satisfying the requirements of the statute. 

Guaranteed Jury Instructions

To avoid the risk that jury instructions will fail to adequately define the woman's rights and the physicians' duties, the jury shall be provided with a copy of the pro-woman legislation at the request of either counsel. This feature ensures that juries have an opportunity to more fully appreciate the intent of the legislation and the broad rights which it grants to women. 

Federal Legislation

While pro-woman legislation can be pursued in the individual states, many of these principles can also be enacted through federal legislation. Following the Republican congressional victory of 1994, this author proposed to pro-life congressmen the enactment of the Full Disclosure Act which would define the right abortion patient's right to full disclosure as a civil right under federal law. The central aspects of this act are described in the appropriate sections above. 

In summary, the Full Disclosure Act would codify the reasonable patient standard for all cases of abortion in all fifty states. It would specifically require notification of all pre-identifying risk factors and disclosure of all optional ways of correcting the physical, emotional, familial, social, or economic problems associated with the pregnancy. Women who are denied their civil right to full disclosure would be entitled to a compensatory award of not less than $200,000 and not more than $2,000,000 without the need to prove any other injury, though this award could increase if additional injuries are proven. 

On a smaller scale, this same standard could be specifically applied only to agencies receiving federal health and family planning grants. Planned Parenthood, and the like, have insisted that the "Gag Rule" forbidding federal funds from being spent on counseling for abortion prevents them from providing women with the option of abortion, which they are "ethically" bound to provide. Since we want to respect their ethical standards (especially since they are so rarely seen), the "Full Disclosure Rule" would simply insist that once they bring up the topic of abortion, they become legally and financially responsible for providing full disclosure. This Full Disclosure rule would include all of the provisions as described above with two additional stipulations. First, the grant recipient is solely responsible for all awards to a plaintiff for violation of the full disclosure requirements. Second, violation of the full disclosure requirements would automatically make the offending agency, and any parent agency, ineligible for federal funds, under all funding Titles, for any programs, for a period of ten years. 

It should be noted that this same strategy can be used to stop any pro-abortion legislation. Pro-woman/pro-life candidates need merely to amend the legislation to expand women's rights against the abortion industry. For example, when President Clinton came into office, the pro-abortionists were pushing hard for the Freedom of Choice Act. The centerpiece of this act was the provision that States "may not restrict the right of a woman to choose to terminate a pregnancy." Pro-abortionists hoped to use this bill to protect abortion in the event that Roe was reversed. Roe wasn't reversed and so the push for FOCA died. If it is ever revived, pro-abortion enthusiasm for the bill would immediately dissipate if a simple amendment were added, namely: "A State may not restrict the right of a woman, or her survivors, to recover damages in civil action, at any time, from an abortion provider for any physical, psychological, emotional or social injuries associated with the abortion." This amendment to FOCA would strike down all statutes of limitations on civil actions against abortionists and would eliminate all malpractice caps on awards for abortion related injuries--all while expanding women's rights, which was ostensibly the goal of the bill. Any debate of such an amendment would place supporters of FOCA in the very awkward position of claiming that the right of women to sue for abortion related injuries must be limited to protect the viability of the abortion industry. Clearly they would not want to openly debate this amendment, but neither could they afford to let it pass into law. Thus this amendment would be a "poison pill" which would force them to withdraw their bill. 

Taking Back Choice

Readers by now have noticed that I like to take the battle onto our opponents' ground. If we are right, and they are wrong, then even the smallest kernel of truth which lies in their arguments can be built upon to destroy their false god. They claim to be concerned about the welfare and autonomy of women. I claim to be more concerned, for the very good reason that abortion is injuring women, not helping them. 
.
.
.

To learn more about our model legislation, including a copies of model bills and support documents, please go to www.afterabortion.info/leg
.
.
.

To read the rest of this chapter, order Making Abortion Rare, today.
.
.
.
.
 

1. David Reardon, "Psychological Reactions Reported After Abortion," The Post-Abortion Review 2(3):4-8, Fall 1994. 

2. Roe, 159-162. 

3. Roe, 163-164. 

4. As previously noted, Sylvia Stengle of the National Abortion Federation admits that in such cases the abortionist would be ethically bound to refuse to perform the abortion. Woo, "Abortion Doctor's Patients Broaden Suits", Wall Street Journal Oct. 28, 1994, B12. 

5. "Mixed feelings and uncertainty about proceeding with an abortion seem to be associated with later guilt, preoccupation with fantasies of the fetus, including its sex, awareness of the term delivery date and being upset at seeing other women with babies." Gath & Rose, "Psychological Problems & Gynacological Surgery" in Psychological Disorders in Obstetrics and Gynaecology (London: Butterworths, 1985). See the additional citations in Appendix A. 
 

* * * ALL RIGHTS RESERVED * * * 

Copyright 1996 David C. Reardon. Excerpted with permission for from Making Abortion Rare: A Healing Strategy for a Divided Nation, published by Acorn Books, PO Box 7348, Springfield, IL 62791-7348 for internet posting exclusively at www.afterabortion.org. All Rights Reserved.