Kansas Supreme Court Upholds Law Banning Wrongful Birth Lawsuits That Encourage Abortions

State   |   Micaiah Bilger   |   Apr 30, 2021   |   6:45PM   |   Topeka, Kansas

Children with disabilities won a victory in court Friday when the Kansas Supreme Court upheld a law that prohibits “wrongful birth” lawsuits.

Kansas passed the law in 2013 to prohibit the discriminatory lawsuits and protect unborn babies with disabilities. “Wrongful birth” lawsuits occur when parents sue doctors for allegedly failing to provide information that would have led them to abort their unborn babies.

The Associated Press reports the parents of a girl born with a severe brain disorder challenged the law in 2014 after they tried to sue their doctor. The parents, Alysia Tillman and Storm Fleetwood, accused their doctor of missing indications of their daughter’s disability on ultrasound images and said they would have aborted her if they had known, according to the report.

On Friday, the Kansas Supreme Court ruled against the parents, with one judge slamming such lawsuits as “reprehensible discrimination” against children with deformities, the report states.

State Attorney General Derek Schmidt, who defended the law and is running for governor in 2022, celebrated the ruling in a statement.

“I am pleased we have successfully defended this important statute enacted by the legislature,” Schmidt said. “In Kansas, the birth of a child should be cause for celebration, not for the law to award damages because the child was ‘wrongfully’ born.”

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Justice Caleb Stegall, one of the judges who ruled in favor of the law, said the court did not go far enough in its decision Friday. Though the majority agreed to uphold the law, Stegall said they also should have overturned a 1990 state Supreme Court ruling that allowed such lawsuits in the first place, the report states.

He slammed the 1990 ruling as a “black mark” on the state and “one of the worst decisions in our court’s history.”

“The Kansas Supreme Court said quite loudly that under Kansas law, some lives are worth more than others,” Stegall wrote.

Before the law passed in 2013, Kathy Ostrowski, legislative director for Kansans for Life, stressed the need to protect unborn babies with disabilities from discrimination.

“Claims that a child should not be alive and should have been aborted advances the mentality that children are objects that can be rejected if physically imperfect,” Ostrowski said. “It also does disservice to the gains that the disability community have made.”

According to LexisNexis, 12 other states also prohibit wrongful birth lawsuits: Idaho, Utah, South Dakota, Minnesota, Oklahoma, Arkansas, Missouri, Kentucky, Michigan, Pennsylvania, North Carolina and Georgia.