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Why critics say a Texas bill lets anti-abortion doctors lie to pregnant women


An ultrasound technician had just told Rachel Tittle that she was carrying a baby girl when things went terribly wrong.

She was 20 weeks pregnant at the time and couldn't wait to become a mother. That's when a doctor walked into her examination room and delivered the news that still haunts her six years later.

“They told me my baby's abdomen was full of fluid — and if nothing changed very soon, it was going to stop her heart,” Tittle told The Washington Post, recalling the 2011 incident. “It was a horrible, horrible experience.”

After a series of tests, doctors told Tittle and her husband that their unborn child had contracted congenital Cytomegalovirus Infection (CMV), a common virus with few symptoms that can be passed from a mother to her developing fetus. The virus leaves some fetuses unharmed, but kills others and can result in permanent hearing loss and mental impairment for children who survive.

By the time doctors decided to try an experimental procedure on the baby to save her life, it was too late.

“There was too much damage” Tittle said. “They couldn't find a heartbeat because she had died.”

Tittle believes that if she had discovered her child's illness earlier in her pregnancy, the baby might have been saved. She doesn't fault doctors for failing to notice the infection in time. But she does fear that a new bill introduced in the Texas Senate could lead to more unborn babies like her own dying unnecessarily.

Tittle told lawmakers her story when she testified recently before the Texas Senate Committee on State Affairs against Texas Senate Bill 25. Also known as the “wrongful birth” bill, S.B. 25 would prevent parents from suing doctors if their child is born with a disability.

Tittle says her story illustrates the importance of monitoring pregnancies carefully for signs of problems. But it has gotten tangled up in the debate over abortion.

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The sponsors of the “wrongful birth” bill say such prenatal tests, which may lead women to choose abortion, can be used in lawsuits against doctors who see fetal defects and do not recommend abortion.

The bill's author, state Sen. Brandon Creighton (R), said he introduced the legislation because he considers it “unacceptable that doctors can be penalized for embracing the sanctity of life” in Texas and noted that — as a father of two — he believes that “every child is precious.”

In announcing the proposed legislation in November, Creighton's office said that the state senator from Conroe, near Houston, “took a stand for the unborn with a bill intended to protect doctors from legal pressure to recommend abortion. Based on legal precedent, doctors can be assigned liability for children born with abnormalities if they identified those abnormalities in utero and failed to advocate for termination, resulting in what’s termed a 'wrongful birth.'”

The bill's opponents say S.B. 25 would create an incentive for antiabortion doctors to avoid conducting prenatal tests, of fully informing pregnant women of the test results — or even to lie to patients who might seek an abortion after learning their fetus has abnormalities.

Tittle, who says she isn't affiliated with either side of the abortion debate, is quick to point out that she believes her doctor acted in good faith before her unborn child died — but she's not convinced other doctors will do the same.

She says she worries that lawmakers are so intent on stopping abortions that they're willing to provide legal cover for religious doctors who want to steer pregnant women away from abortion at all costs.

Along the way, she said, families who want to fight for their fetus's health may lose the chance to do so.

“I would've done anything to save my child and that would be a huge decision for a doctor to take away from me,” she added.

Creighton, the bill's author, said in an email to The Washington Post that “expectant parents should not be worried. This legislation does not impact their ability for recourse under the Texas Civil Practice & Remedies Code, which allows for lawsuits claiming fraud and gross negligence.”

“Physicians who act unethically, or knowingly withholding information from their patients, can be sued,” he added.

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In Texas, “wrongful birth” lawsuits give parents of children with severe disabilities the ability to take legal action against their doctor if they believe they weren't adequately informed about their child's disability before their birth. Creighton's bill would terminate wrongful birth lawsuits as a cause of action in medical malpractice lawsuits, following in the footsteps of nine other states that have bans on wrongful-birth lawsuits, including Arizona, South Dakota and Indiana.

Creighton said there's been an increase in the number of attorneys in Austin and Houston soliciting clients as wrongful birth specialists. But several Texas attorneys told the Dallas Morning News that the lawsuits are exceedingly rare because of the difficulty of assessing damages and finding a sympathetic jury.

“The thing is, I've practiced medical malpractice for 30 years and I have never brought one of these,” attorney Kay Van Wey told the newspaper. “I know all the other experienced medical malpractice lawyers in Dallas, and I don't know any of them who have brought these lawsuits.”

According to the Texas Tribune:

The idea of “wrongful births” goes back to Jacobs v. Theimer, a 1975 Texas Supreme Court case. In that case, Dortha Jean Jacobs contracted rubella in her first trimester of pregnancy and gave birth to a baby born with defective organs. She and her husband went on to sue her doctor, Louis M. Theimer, citing that failing to diagnose her illness early prevented them from knowing all of the risks of having their baby. The courts awarded them money for medical expenses for their child.

Jennifer Allmon, the executive director for the Texas Catholic Conference of Bishops, testified in support of the bill on behalf of her organization. Asked whether the bill would empower doctors to mislead patients, Allmon said critics had adopted “an awfully cynical view of doctors.”

“Doctors take an oath to do no harm,” she said. “Any OB/GYN who is working with a patient with a wanted pregnancy is going to do anything in their power for that wanted pregnancy to have an healthy outcome. Any OB/GYN who would withhold information is acting with gross negligence.”

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Blake Rocap, legislative director for NARAL Pro-Choice Texas, said physicians shouldn't be in a position to make a moral judgment about the information they give patients. How that information is used, he said, is a woman's business alone. Rocap said proponents of the bill seem to be operating under the false assumption that fully informing a woman about a problem with her pregnancy is the same thing as recommending she get an abortion.

“Sometimes that information will lead to termination of a pregnancy and sometimes it will lead to a woman going to great lengths to keep a pregnancy viable that may otherwise be lost or end in a miscarriage,” he said.

He added that, by limiting legal consequences, the bill could encourage doctors to commit what he characterized as medical malpractice.

“I would like to believe there's not many doctors in the state of Texas who would be so unprofessional to lie to their patients,” he said. “But for those that would, this bill allows them to do that without taking any responsibility.”

Creighton said his proposal doesn't encourage doctors to withhold information, but “promotes a continuous and open conversation between a physician and patient so that patients can make a fully informed and unbiased, ethical decision.”

“The legislation does not change the standard of care and does not relieve doctors from the claim of negligence,” he added.

The bill has the support of some of the state's most powerful politicians, according to a statement from Creighton's office, which quoted Lt. Gov. Dan Patrick (R) as saying: “I commend Sen. Creighton for filing this important legislation. The Texas Senate values the life of every child and will fight to protect the value and dignity of every life including those born with disabilities.”

A spokesman for Gov. Greg Abbot (R) said he supports the proposed legislation as well.

After listening to lawmakers discuss the bill at a committee hearing last month, Tittle asked the lawmakers to consider what a lying doctor might look like from an expectant mother's perspective.

“How do you picture it when a doctor decides to lie?” Tittle asked lawmakers during the hearing. “Would he smile in the ultrasound room and tell us everything was fine while he knew the baby’s heart was struggling to beat? Would he reassure me when I called and said the kicks were coming less and less frequently — that everything was fine?

“That would be wrong, and this bill would be wrong,” she added.

The proposal passed through the Senate Committee on State Affairs with full support Monday.

The bill now goes to the full senate.

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