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Anti-Choice Medical Malpractice Shields Threaten to Permanently Alter Medical Care for Women

9:51 am in Uncategorized by RH Reality Check

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Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

Among the new restrictions appearing in anti-abortion bills nationwide, it is the medical malpractice liability shields that have the potential to alter, perhaps permanently, women’s relationship with the civil justice system.

Both Kansas and Arizona are advancing measures that exempt doctors from medical malpractice suits should they withhold medical information in order to prevent a woman from having an abortion. These bills also shield doctors from malpractice claims if a woman suffers an injury from a pregnancy as a result of information withheld from her to prevent an abortion. Georgia just snuck a liability shield into their 20-week abortion ban. We can expect more to follow.

Proponents of these “wrongful birth” bills argue they are necessary to stem the tide of lawsuits like one in Oregon where parents sued for costs related to the care of their daughter who was born with Down Syndrome. In that case the parents argued that the medical professionals were negligent in conducting the genetic testing and had they known their daughter would be born with a disability they would have had an abortion.

This is the kind of case that is destined to generate lots of headlines and some terrible legislation in its wake. In reality, less than half the states recognize a claim for wrongful birth and in those states that do, cases like this one are rare and these kinds of verdicts ever rarer. Nevertheless, anti-choice activists see an opening, and they are going to take it.

So far neither Kansas, Arizona, or Georgia has yet signed into law these malpractice shields. But assuming they do, the impact on medical malpractice law and the ability of women to justly compensated should they be the victim of sub-standard medical care cannot be overstated.

In order to successfully prosecute a claim for medical malpractice a plaintiff needs to prove that a medical professional violated the standard of care in delivering medical advice or care. This is no easy task. Determining what the standard of care is requires an objective look at the standard practices of similar professionals in similar situations and comparing that the the care delivered in the specific case at hand. Expert testimony is almost always required as other medical professional opine as to what course of treatment and advice was indicated given the specifics of a patient’s case.

The standard of care is considered, roughly in legal standards, to be the average care a patient can expect to receive. The care doesn’t need to exceed this standard but it can’t slip below it without it being considered negligence and doctors and hospitals being held liable for any injuries that come from that negligence.

Wrongful birth bills change all this. With these provisions dictating a specific course of treatment in the case of withholding information to drive a particular medical outcome the standard of care is essentially set by legislators. Say goodbye to a community of medical professionals determining best medical practices.

In practice this means that instead of an objective inquiry into the medical treatment and advice given to a pregnant woman based on what the profession as a whole considers competent medical treatment, the individual beliefs of the doctor will determine if advice given or care rendered was reasonable. In legal terms that changes the inquiry from objective to subjective meaning there is no real basis to judge conduct against. It will no longer matter what a doctor’s peers believe to be considered good medical care: it will only matter if that particular doctor thought the care would avoid an abortion.

Furthermore, that inquiry won’t be focused on advice given or care rendered in the scope of protecting the health and life of the mother, but instead on decisions and care motivated solely to perpetuate a pregnancy. This erases the mother as primary patient to at best, a secondary consideration. What the medical community considers to be competent advice and care will cease to be relevant as the only concern will be did this individual doctor make this individual decision based on his or her individual desire to prevent an abortion. In no other area of tort law do we allow this. And for good reason.

That’s because tort law is designed to compensate victims in the case of others negligence. These malpractice shields presume that withholding information from patients to impact a decision regarding care is an act of negligence. The bill itself proves the point. If providing medical advice based on personal moral beliefs instead of medically evidenced-based indicia was not considered medical malpractice shielding doctors from malpractice would be unnecessary.

The impacts on patient care will also be long-term. One of the effects of tort reform–and these malpractice shields are another form of tort reform– is to weed out dangerous and ineffective medical practices. Instead of providing women with all information necessary so they can make an informed medical decision the standard of care will be to make that decision for them, no matter what that decision happens to be. That means the persuasive force of tort reform will no longer exist in regards to reproductive health care in these states. In fact, these bills could have the opposite effect as the aspect of community review that takes place in determining a standard of care will become irrelevant. Bad doctors will be permitted to continue practicing bad medicine with no consequences, nor any threat of consequences.

That also means that women in states with wrongful birth bills can never be sure the medical information they are receiving is accurate and unbiased, nor can they sue in the event that its wrong or negligent. And that women in states without these bills will have to exercise even more caution and be even greater advocates for their own care as what constitutes good accepted medical practice is no longer easily determinable.

Pregnant women will, in effect be returned to the same legal standing of juveniles or persons under legal guardianship and conservatorship, devoid of the ability to consent to a full course of medical treatment on their own.

The impact of these bills will also reach far beyond just abortion politics. Birth injury cases represent a significant portion of medical malpractice cases in general, in large part because the costs associated with an act of negligence in pregnancy and delivery are so great. Insurance companies generally (and usually successfully) fight coverage for those costs meaning that malpractice recoveries often represent the only financial means of providing for a disabled child. These wrongful birth bills will allow those claims to go uncompensated as all health care professionals need to do to avoid liability in any case is to justify their course of treatment in terms of seeking to prevent an abortion.

The creation of a medical malpractice shield simply strips women of the ability to be compensated for sub-standard medical care rendered to them while pregnant and nothing more.

Couple wrongful birth bills with the federal medical malpractice bill that just passed the House of Representatives and it becomes clear that this push to strip women of the ability to challenge substandard medical care they receive is seen as the solution to that pesky legal reality that women’s bodies receive any legal protections to begin with. And since medical malpractice claims are always claims for money damages, there is no more straightforward a way to say that women’s lives have no value then to take away their ability to bring a claim based on the value of that life to begin with.

Rape Victims Aren’t Victims, According to Georgia Rep.

8:58 am in Uncategorized by RH Reality Check

Written by Amie Newman for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

Apparently, in Georgia, it’s not enough that women aren’t to be trusted to make our own medical and health decisions without government intrusion. Now, we’re not to be trusted when it comes to reporting crimes, either.

Republican State Rep. Bobby Franklin, of Georgia, has introduced H.B. 14 which mandates that rape victims, victims of stalking or harassment, or victims of family violence may no longer be classified as “victims” but as “accusers.” According to the Democratic Legislative Campaign Committee, Franklin’s bill would,

change the state’s criminal codes so that in “criminal law and criminal procedure” (read: in court), victims of rape, stalking, and family violence could only be referred to as “accusers” until the defendant has been convicted.

To read the bill itself is like one long assault on women’s autonomy and capacity as thinking human beings. Each time the word “victim” is crossed out in favor of “accuser,” it’s another slap in the face to justice. Franklin’s utterly misogynistic, hateful bill tells victims that regardless of what they’ve experienced,  those experiences aren’t valid and they’re not to be believed until our justice system deems it so. Read more

Modern Day Chain Gangs: Shackling Pregnant Mothers in Georgia Prisons and Jails

6:34 am in Uncategorized by RH Reality Check

Written by Tonya Williams for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

"I cannot imagine a place where one might stand and have a clearer view of concentrated disadvantage based on race, class, and gender inequality in the country then from inside the walls of women’s prisons."  – Beth E. Richie

When Gwen got locked up for a minor non-violent drug offense, she didn’t know she was pregnant. Just days into her confinement, she began to experience cramping, severe abdominal pains and bleeding. She immediately tried to alert the guards about her condition.  After what seemed like hours of pleading and begging for medical assistance, an officer finally came to take Gwen to the infirmary.  She was eventually rushed to the hospital. By the end of her brief stint in a Fulton County jail, she would discover she was pregnant, miscarry, and as a final illustration of neglect and callous disregard, she was shackled by the wrists and ankles as the physician removed the remains of her stillborn fetus from her womb.

While Gwen’s story is one of the most egregious stories of state-condoned reproductive oppression that I have documented, incarcerated pregnant women across the state of Georgia have been and continue to be subjected to shackling by the wrists, ankles or around the belly on their way to the hospital, during labor and delivery and in recovery. Dehumanized, shamed by the visible signs of their bondage, and oftentimes unable to receive the holistic and essential pre- and postnatal care and nutrition needed, pregnant women in Georgia must confront a painful reality. They have become a part of the modern day chain gang.

Georgia is one of more than forty states that continue to permit the use of restraints on incarcerated pregnant women during transport, labor, delivery and recovery.  According to a study of state prison policies and laws around the country undertaken by the Rebecca Project for Human Rights, "it seems safe to assume that prisons" in Georgia "are engaging in shackling as a matter of routine."

Over the last few years, several states have prohibited the practice concluding that shackling incarcerated pregnant women during the birthing process is not only unnecessary, but unduly subjects women to cruel, degrading and inhumane treatment. More recently, the national anti-shackling movement has witnessed a string of victories condemning the practice as activists on the state level have successfully won bans in West Virginia and Washington state and are on the verge of victory in Pennsylvania. 

The Federal Bureau of Prisons outlawed the practice in federal prisons after considerable lobbying from a broad range of health care professionals, prison advocacy, civil liberties, and women’s rights groups.  A few months ago, the 8th District Court of Appeals, in Nelson v. Norris held that "the U.S. Constitution protects pregnant women in prison from the unnecessary and unsafe practice of shackling during labor and childbirth." Moreover, the practice of shackling incarcerated women during labor, delivery and recovery violates international standards and norms. Clearly, the time to end this practice in the United States is upon us. While, the shackling of incarcerated pregnant women has sounded a clarion call, mobilizing reproductive justice groups around the country, we understand that the use of restraints on pregnant women is symptomatic of a much larger problem in our prisons around the provision of medical care and reproductive health of female inmates.

For more than two years, SPARK Reproductive Justice NOW has engaged in an extensive participatory research and documentation effort, with community and formerly incarcerated women to bring awareness around the conditions pregnant, incarcerated women are subjected to during the laboring and birthing processes. Most pregnant incarcerated women, imprisoned for non-violent crimes relating to poverty and/or substance abuse, pose no physical threat to health care professionals, themselves, correctional officers or society

In Georgia, two correctional officers accompany the shackled pregnant woman and one is always in close proximity to her except under rare circumstances.  From our understanding, whether restraints are used, under what circumstances and for how long, largely depends on the guard not policy or law. While, prison officials justify the use of restraints as a security precaution, nurses that provide essential care and spend the most time with the women, will tell you, no woman has ever tried to escape nor could she if she wanted to. Labor is called labor for a reason.  Furthermore, they say, it’s just cruel.

As a reproductive justice organization, our work is rooted in the belief that individuals and communities should have the resources and power to make sustainable and libratory decisions about their fertility, bodies, genders, sexualities, families and lives. Thus, the rapid expansion of the prison system, disappearing tens of thousands of predominately low-income women of color, especially black women, is a reproductive justice issue. Birthing while incarcerated is a reproductive justice issue.  Shackling of incarcerated pregnant women is a reproductive justice issue. Prisons and jails, by far, are some of the most invisible and unaccountable sites of reproductive oppression where justice is hardly won or realized.  As we celebrate Mothers Day, let us not forget those women rendered invisible and silenced by the walls, intersecting systems of oppression, social stigma, shame and physical restraints that define their lives in so many ways. 

For more information about our efforts toward advancing reproductive justice in Georgia, please visit us at: www.legislatethis.org.

CBS Behind Anti-Choice Billboards in Atlanta

6:51 am in Uncategorized by RH Reality Check

Written by Jodi Jacobson for RHRealityCheck.org – News, commentary and community for reproductive health and justice.

What, exactly, is happening with CBS?  Has it suddenly merged with the Christian Right and become the "Christian (Right) Broadcasting System?"

It would seem so.

For the past month, reproductive justice groups in Atlanta, Georgia have been fighting against an anti-choice campaign by Georgia Right to Life and a group called the Radiance Foundation.  The two groups have collaborated to buy billboard space throughout the city calling black children "an endangered species," and advocating for laws to limit the reproductive choices of women of color, as well as to push for laws banning abortion based on "the race or the sex of the child." 

Now it turns out that the billboards are the property of CBS Outdoors, a subsidiary of the multi-media CBS corporation.  This is not the CBS of my childhood (I Love Lucy, the Ed Sullivan Show) or of the once venerated show, 60 Minutes.

This is instead the CBS that "suddenly changed its advocacy policy" to air a Super Bowl advertisement earlier this month from Focus on the Family, the ultra-right conservative organization that seeks to limit the rights of women, homosexuals, and people of color generally.  Meanwhile, they denied ad space to several organizations representing gay rights and gay advertising interests.

It is the CBS that then pushed for inclusion of Focus on the Family ads on the website of the NCAA.com, and for airing ads by the same during the March Madness college basketball tournament, until the latter pulled those ads in response to protests from the LGBT community and likely after someone, somewhere in the NCAA finally (re)read their own guidelines against ads coming from messengers that, for example, denigrate gay people.

That CBS. 

There are currently 65 billboards throughout the Atlanta area, and Georgia Right to Life told the New York Times that it intends to soon have 80 such signs.

These are owned by and rented from CBS Outdoors, which is now the target of a campaign by women’s rights groups in Georgia seeking to remove the Georgia Right to Life signs.

One of the groups leading the campaign is SPARK Reproductive Justice Now, an organization that works to address the complexities of the lives of women and girls.   

"SPARK Reproductive Justice NOW respects and defends Black women," says a statement from the group, "and all people’s, reproductive health decisions including the right to abortion."

"Black women know what is best for our lives, our families, and our communities and are capable of making these decisions without a coordinated assault by organizations that are not genuinely committed to addressing the host of social issues confronted by the black community. We strongly reject and denounce these billboards and the sponsoring organizations, Georgia Right to Life, the Radiance Foundation, and Operation Outrage for speaking about us, demonizing our decisions, and assuming they know what is best for our lives."

The suggestion by these billboards that "black women somehow are perpetrators of a coordinated and intentional effort to “execute” black babies is harmful, deplorable and counterproductive," states SPARK. "Black communities and our allies will not stand by while black women’s character and moral agency are persecuted, demonized and intimidated by these ads and their supporters."

"We urge people interested in the lives of black children to look at black communities more holistically and commit themselves to issues such as poverty, food insecurity, unemployment and underemployment, the school to prison pipeline and the broader prison industrial complex, environmental degradation and affordable housing."

Yet rather than working on these issues, the "pro-life" community in Georgia is focused on passing House Bill 1155, the Prenatal Nondiscrimination Bill, which  asserts that abortion providers in the state of Georgia solicit women of color to have abortions based on the race or sex of the fetus.

"While such allegations are unfounded and inflammatory," states SisterSong, another group leading the opposition to both the legislation and the billboard campaign, "the bill has sparked much interest. This bill also proposes a ban on sex-selective abortions, furthering the criminalization of women of color without any regard to the broader ubiquitous issues of gender discrimination that are deeply embedded in the fabrics of our lived experiences."

A statement opposing the bill has been signed by more than 40 national leaders from communities of color committed to reproductive justice and other leaders in the reproductive justice movement.

According to SisterSong, HB 1155 was heard and voted on in the Non-civil Judiciary Sub-Committee last week. It passed and was then presented in the full Judiciary Committee on Wednesday, February 17, and Republicans in Georgia are attempting to fast-track the legislation.

"This bill seeks to ban the solicitation and targeting of women of color by abortion providers throughout the state," says Sistersong in another statement. 

"This misleading issue of abortions for sex- and race-selection in Georgia means that we have to use facts and science to stand up for women of color without undermining our support for abortion rights or without enforcing racial stereotypes about women of color.  Intent on driving a wedge between reproductive justice and racial justice organizations, and pro-choice advocates, the bill reflects the false assumption that abortion providers throughout the state “solicit” women of color."

If implemented, this bill will adversely impact abortion providers by requiring them to prove that they are not targeting women of a certain race or ethnicity. This burden could result in delayed medical services, particularly for women of color.  Creating such delays are a common tactic of the anti-choice movement, creating additional burdens on women facing unintended pregnancy.

Additionally, this legislation would alter the racketeering laws of the Georgia Code to include abortion providers. This is unacceptable as abortion is legal in the State of Georgia, and the alleged abuses of this medical procedure are unfounded. Such a bill would have a terrible effect on women’s ability to access reproductive health care services throughout the state.

"This bill comes on the heels of a controversial billboard campaign that targets Black women in Georgia," said SisterSong.

The blatantly sexist and racist billboards declare Black children as an endangered species and prey on the conscience of Black women. The mere association between the born and unborn with endangered animals provides a disempowering and dehumanizing message to the Black community, which is completely unacceptable.

Why CBS is allowing itself to become so deeply enmeshed with the anti-choice, anti-science, anti-rights community is a mystery, but given the confluence of recent events, it clearly underscores the need for a greater degree than ever of coordination among reproductive justice and pro-choice advocates with the LGBT community in the United States. 

Meanwhile, in response to the billboards, SPARK has launched a campaign asking CBS Outdoors to remove the ads.  Information on the campaign can be found here.