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Wrongful Birth Bill: New Abortion Legislation Passes Arizona Senate

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Arizona Gov. Jan Brewer has not indicated her position on a controversial abortion bill.
Arizona Gov. Jan Brewer has not indicated her position on a controversial abortion bill.

The Arizona Senate passed a bill Tuesday that will prohibit medical malpractice lawsuits against doctors who withhold information from a woman that could cause her to have an abortion.

The "wrongful birth, wrongful life" lawsuit legislation passed the Republican-controlled Senate 20-9 Tuesday, setting up a coming battle in the GOP-dominated state House of Representatives. The legislation -- which is currently law in nine states -- is sponsored by a Republican senator with close ties to the conservative American Legislative Exchange Council. The approval comes as Kansas lawmakers consider similar legislation.

Sen. Nancy Barto (R-Phoenix) told the Claims Journal that she sponsored the law because she did not want claimants to blame a doctor for a baby born with disabilities. Under the provisions of her bill, a doctor could not be sued for medical malpractice if the doctor withholds information from a mother about a child's potential health issues that could influence her decision to have an abortion. In addition, a lawsuit could not be filed on the child's behalf regarding a disability.

The suits and laws have been deemed "wrongful birth" and "wrongful life."

Barto's legislation will allow for medical malpractice suits in the event for "intentional or grossly negligent" acts and for any acts that violate criminal law. Barto proposed the legislation after it was proposed by the conservative Center for Arizona Policy.

Barto did not return a message left at her Phoenix office for comment.

In 2011, Barto was named legislator of the year by ALEC. A press release she issued on the award noted she was on the executive committee of the group's Health and Human Services Task Force and touted her opposition to the federal health care reform law.

Barto's legislation is quickly drawing opposition from House Democrats, including Rep. Matt Heinz (D-Tucson). Heinz, a physician, said that he does not believe the proposal fits with the role of a doctor and noted that in many cases a woman needs to know of the potential disabilities to prevent health problems that could potentially kill her during child birth.

"I cannot think of a time that it is right to withhold information from a patient that would cause them pain or death," Heinz told HuffPost. "That is not consistent with the Hippocratic Oath."

Heinz, who is running for Congress, said it is tough to know if the bill will pass the House, noting it has come over from the Senate late in the legislative session.

House Minority Leader Chad Campbell (D-Phoenix) agreed with Heinz that the late date in the session may not bring the bill to the floor, but said that he believes the bill will likely pass if it reaches the full House. The House and Senate have mirrored each other in the passage of conservative leaning bills in the last year, he said.

Currently Pennsylvania, North Dakota, South Dakota, Utah, Idaho, Indiana, Missouri, Minnesota and North Carolina have wrongful birth laws. A 1994 challenge to the Pennsylvania law ended with the law being upheld by a federal appeals court; the U.S. Supreme Court declinedto hear the case. Kansas lawmakers are currently debating a measure that would allow doctors to withhold information from a mother in order to prevent an abortion and not face a malpractice suit.

In 2011, a Florida jury awarded a couple $4.5 million in a wrongful birth lawsuit they brought against a doctor who had not told them their son would be born with one leg and no arms. The couple had said they would have sought an abortion if they knew the information.

Gov. Jan Brewer (R) has not indicated her position on the bill. Last year, Brewer signed a bill prohibiting abortions based on the race and gender of the fetus.

"Typically, the governor does not comment on bills before they reach her desk," Brewer spokesman Matt Benson said.

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