Tuesday, June 06, 2006

Can You Say Irony

A state appeals court has ruled that a Birmingham abortion clinic can be sued over an unsuccessful abortion that a woman blames for damaging her child's health. The Alabama Court of Civil Appeals reversed a lower court ruling that had blocked a lawsuit filed by a woman on behalf of herself and her child. In a decision released May 26, the appeals court said the woman, identified only by her initials L.K.D.H., can sue Planned Parenthood of Alabama on behalf of her child. Eric Johnston, a Birmingham attorney who has helped write many of the anti-abortion bills considered by the Legislature, said the decision is significant because it holds that a health care provider can be held responsible for injuries caused to a child in the womb. "The fact it was during an abortion doesn't change that," Johnston said.Larry Rodick, state director of Planned Parenthood, declined comment. Planned Parenthood attorney Eric Hoaglund said the decision is still under review and no decision has been made about the next step. He declined further comment. The case involved a woman who went to Planned Parenthood's abortion clinic in Birmingham. The abortion procedure was unsuccessful in ending her pregnancy, and she blamed the unsuccessful abortion for resulting in her daughter being born with injuries that included a hole in her heart and an inverted tube leading from her lungs to her heart, "causing her body not to be able to receive enough oxygen." Circuit Judge Robert Vance Jr. issued summary judgment in favor of the abortion clinic. The appeals court agreed with him that the mother couldn't sue on her own behalf, but the five judges said she can sue on behalf of her child."Neither the United States Supreme Court nor the Supreme Court of Alabama has ever ruled that a medical provider, or for that matter a mother, can engage, with some blanket of constitutional protection, in negligent or reckless conduct that deforms or injures a child so long as the deformity or injury is inflicted on the child before it leaves the womb," Judge Glenn Murdock wrote. To embrace that position would allow abortion clinics to operate "as carelessly or recklessly as they wish without bearing any responsibility. ... It would be hard to imagine a more troubling development in our law," the judge wrote. Johnston said the ruling opens a narrow window because other Alabama court cases have held a woman can't sue over a successful abortion and a child born healthy after an unsuccessful abortion can't sue over "wrongful birth."The woman's case was originally appealed to the Alabama Supreme Court, but the court transferred it to the Court of Civil Appeals. At least one member of the Court of Civil Appeals questioned the transfer in a concurring opinion. Judge Craig Pittman wrote that the state law providing for the transfer of cases says the Supreme Court should not transfer a case that presents a "novel legal question" that has "significant statewide impact." Murdock, who wrote the main decision, is running in the Republican primary for the Alabama Supreme Court.