Using Malpractice Laws to Sabotage Roe v. Wade

By Alex Stein

This method was pioneered by South Dakota and Indiana that set up special “informed consent” requirements for abortion procedures, SDCL § 34-23A-10.1 and IC 16-34-2-1.1. Under these requirements, physicians must tell the pregnant woman (inter alia) that “the abortion will terminate the life of a whole, separate, unique, living human being” with whom she has a relationship that enjoys constitutional protection; that “human physical life begins when a human ovum is fertilized by a human sperm”; that the abortion might lead to depression, suicide ideation, and suicide; and that she should “view the fetal ultrasound imaging and hear the auscultation of the fetal heart tone”; and also have the name, address, and telephone number of a nearby pregnancy help center.

The prize for innovation and ingenuity in this area, however, squarely belongs to Louisiana, whose special abortion-malpractice statute—Act 825, La. Rev. Stat. § 9:2800.12—was upheld this week in K.P. v. LeBlanc, — F.3d —-, 2013 WL 4746488 (5th Cir. 2013).  Act 825 complements Louisiana’s “Woman’s Right to Know Act,” La. Rev. Stat. § 40:1299.35.6, that established “informed consent” requirements for abortion similar to those of South Dakota and Indiana.

To understand what Act 825 does, one needs to know the basics of Louisiana’s Malpractice Act of 1975, La. Rev. Stat. § 40:1299.42(B). Louisiana’s Malpractice Act has established the Patient’s Compensation Fund, whose goals are “to guarantee that affordable medical malpractice coverage is available to all private healthcare providers”; “to provide a certain, stable source of compensation for legitimate injured parties of medical malpractice”; “to promptly resolve and fairly compensate legitimate injured parties of medical malpractice”; and “to zealously resist and defend unmeritorious and/or exaggerated claims.” The Fund caps malpractice victims’ compensation at $500,000, plus medical expenses, while limiting the providers’ liability to the first $100,000 of the victim’s damage. Participating providers contribute to the Fund surcharge payments reflecting their liability risks. They also must demonstrate financial responsibility by depositing $125,000 in cash or its equivalent or by purchasing malpractice insurance that covers $100,000. To fend off unmeritorious suits, the Malpractice Act sets up panels of experts that evaluate the merits of malpractice allegations and compile reports that are subsequently admitted into evidence.

Act 825 ordains that “The laws governing medical malpractice or limitations of liability thereof provided [in the Malpractice Act]” will not apply to abortion procedures (La. Rev. Stat. § 9:2800.12(C)(2)).  As simple as that. The Act removes Louisiana’s subsidy from the abortion-related malpractice insurance—a measure that increases the cost of abortion and reduces its affordability. Furthermore, Act 825 sets the limitations period for abortion-related malpractice suits at “ten years from the date of the abortion” (§ 9:2800.12(A))—a wide-open window that starkly contrasts with Louisiana’s 1-year limitations period and 3-year repose period for all other suits sounding in medical malpractice (La. Rev. Stat. § 9:5628).

The Fifth Circuit upheld the Act’s constitutionality in a decision that separated between statutes that place “a substantial obstacle in the path of a woman’s choice,” thereby violating Roe v. Wade, and “unequal subsidization of abortion and other medical services” that is constitutionally permitted (Harris v. McRae, 448 U.S. 297, 315 (1980)). Based on this differentiation and the underlying distinction between “not providing benefits and restricting choice” (Maher v. Roe, 432 U.S. 464 (1977)), it categorized Act 825 as a constitutional denial of a government’s benefit. The Circuit acknowledged Kathleen Sullivan’s powerful critique of this distinction (Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989)), but expectedly based its ruling on “the long-standing law of the Supreme Court.” Act 825 thus survived the constitutional challenge under Roe v. Wade.

Doctors practicing abortion, however, may explore a different challenge in the future. Arguably, they are constitutionally entitled to the same protection against unmeritorious suits as providers of other medical services. Specifically, when a doctor is sued for malpractice in performing an abortion, s/he can demand that the suit’s merits be verified by a panel of abortion specialists (or by a similar screening mechanism: e.g., a merit certificate requirement) and that s/he should enjoy the same limitations and repose protections as all other physicians (in LeBlanc, these issues did not arise). This demand can be based on the due process and equal protection doctrines that apply in civil procedure. Admittedly, those doctrines are rather thin (see Alex Stein, Constitutional Evidence Law, 61 Vand. L. Rev. 65, 78-79 (2008)), but a thin doctrine is still more promising than the thick Maher-McRae jurisprudence that gives the Act’s challengers no hope.

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