Anti-ableism law or incentive for deception?

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Senate Bill 25, which alters descriminatory language in abortion laws, incidentally re-ignited the ethical controversy surrounding abortion based on birth defects. Photo by Kathleen Miller.

On Feb. 27, 2017, Texas legislators sent Senate Bill 25 to the Senate, much to the chagrin of several pro-choice committee members. The bill, which will be put into effect Sept. 1, will remove the legal cause of action called “wrongful birth” from the Texas law books, following the example of Indiana, South Dakota, Arizona and six other states.

Headlines in the following weeks read, “Why critics say a Texas bill lets anti-abortion doctors lie to pregnant women,” “Texas lawmakers advance bill that would allow doctors to lie to pregnant women” and “Texas ‘wrongful birth’ bill would allow doctors to lie, critics say.” 

The arguments behind the panic-inducing headlines have to do with the statements of a handful of dissenters at the committee, namely policy advisor for NARAL Pro-Choice Texas Blake Rocap, freelance writer Rachel Tiddle, and Margaret Johnson of the League of Women Voters of Texas.

Arguments against the bill echo the sentiment that, since the bill protects doctors from being sued by parents who were not informed that their child would be born disabled or sick, it would create an environment in which doctors can safely lie to pregnant mothers, encouraging dishonesty to patients.

“Don’t you think this creates a climate where doctors feel they have the right to impose their own moral beliefs?” Tiddle said.

However, upon examining the document itself, I came to the conclusion that the critics are wrong about their first assumption: that the bill protects doctors who fail to fully inform pregnant mothers. 

“If a child is born with severe disabilities that the physician failed to diagnose through gross negligence, then there are remedies available through medical malpractice suits,” the Texas Catholic Conference of Bishops wrote in an article.“These remedies do not convey the notion that the child’s life lacks worth or dignity and properly address the action or inaction of a doctor, rather than the remedy of killing a child.”

The arguments against SB 25 never seem to deal with it directly. Every argument is one or more steps away from the actual language of the bill. Tiddle’s argument is based on an emotional could-have-been; the law might have kept her from getting experimental treatment for her unborn child if it had been enacted years ago. 

Johnson’s statement that “this bill places an unreasonable restriction on the constitutional right of a woman to make an informed decision about whether or not to have an abortion” is also untrue.

Rocap’s statement that SB 25 empowers doctors to lie to their patients is also wrong. There is nothing in the bill about what doctors are required to tell their patients. So all the talk about deceptive doctors is based on a conjecture about the possible effects of the law.

“It shouldn’t be the policy for the state of Texas to excuse doctors from lying to their patients,” Rocap testified. “That’s what this bill does.”

Critics of the bill argue that it protects doctors from being sued for lying to keep a woman from getting an abortion. Their premise is that, since wrongful birth will no longer be a legitimate cause of action, pro-life doctors will be encouraged to lie, or even purposely refrain from conducting medical tests on pregnant women, who will now have no legal recourse if their child turns out to be sick or disabled. 

If a woman would have had an abortion if she had known her child was going to be disabled, she can still sue an unscrupulous doctor for malpractice if he or she lies to her. She just can’t call her child a wrongful birth.

The more conjectural, and most commonly cited, argument is that SB 25 would create an environment that encourages doctors to keep the truth from their patients.This, however, cannot occur if the legal penalties for medical malpractice remain the same.

So if the bill doesn’t change doctors’ duties to women or create an environment that encourages  doctors to keep secrets from their patients, what does it actually do?

Not much, actually. 

The page-long bill is really just changing discriminatory language and the way the Texas parents talk about their children who are born with serious sickness and disabilities.

By changing the subject, critics of SB 25 have managed to turn an ableism issue into an abortion-rights issue.

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