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Supreme Court of Kansas upholds ban on ‘wrongful birth’ lawsuits

disability, wrongful birth, abortion ban, down syndrome abortion

The Kansas Supreme Court surprised pro-lifers last month when it upheld a law preventing the practice of “wrongful birth” suits against doctors.

In a 5-2 decision, the Kansas justices upheld a 2013 law forbidding the practice of “wrongful birth” lawsuits. The law prevents parents from seeking damages from doctors who do not inform them that their preborn child has a poor prenatal diagnosis or of the “risk” or “burden” of having such a child. Parents who have brought such lawsuits claim this information might have made them choose abortion. 

The original legal challenge was brought by the parents of a girl born in May 2014 with a severe brain abnormality. According to the Associated Press, attorneys argued that the parents would have chosen abortion if the doctor had provided a diagnosis of the child’s medical condition. They argued that by preventing them from suing the doctor for wrongful birth, the law violates provisions of the state’s bill of rights such as the right to a jury trial and the right to “remedy by due course of law” for injuries. In rejecting the legal challenge, the majority argued that the concept of wrongful birth lawsuits was an “innovation,” and that the state’s founders had not conceived of the concept in the 1850s. 

“It is a new species of malpractice action first recognized in 1990,” Justice Dan Biles wrote in their opinion.

As Live Action News previously reported, in 2019, a British woman was awarded $250,000 in a wrongful birth suit against the National Health Service after arguing her son with Down syndrome should never have been born. Attorney General Derek Schmidt, who fought against the ability to bring wrongful birth suits, hailed the decision.

“The birth of a child should be cause for celebration, not for the law to award damages because the child was ‘wrongfully’ born,” he said, according to the AP.

READ: Baby aborted at 18 weeks clung to life for 10 hours in his mother’s arms

The Kansas decision came as a surprise to some pro-lifers who had expected the state’s Supreme Court to continue its abortion-friendly rulings.

In 2019, the Kansas Supreme Court ruled in a 6-1 decision that the right to an abortion was “fundamental” and protected by the state’s constitution, meaning that abortion would be legal in Kansas even if Roe v. Wade were overturned. At the time, only Justice Caleb Stegall dissented: “The majority’s decision is so consequential because it fundamentally alters the structure of our government to magnify the power of the state – all while using that power to arbitrarily grant a regulatory reprieve to the judicially privileged act of abortion.”

In the ruling on wrongful birth lawsuits, Justice Stegall blasted a 1990 court decision that had allowed wrongful birth legal action prior to the 2013 law. He called it a “reprehensible discrimination” against children, and he noted that the “Kansas Supreme Court said quite loudly that under Kansas law, some lives are worth more than others,” according to the AP. Although he joined the other four justices in upholding the 2013 law, he went further by arguing that the court should have overturned the 1990 ruling as well.

Abortion due to a prenatal diagnosis is a form of eugenics that has become the expectation whenever a preborn child is believed to have a health condition, yet it has been shown to have detrimental psychological effects on the parents compared to those who do carry to term. 

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