Nebraska First to Allow Women to Sue for Psychological Injury After Abortion

Doctors Must Screen for Coercion and Other Risk Factors for Abortion Complications

Springfield, IL (April 13, 2010) – A new Nebraska law will allow women to sue abortion providers for psychological injuries related to unwanted, coerced or unsafe abortions, according to the Stop Forced Abortions Alliance.

"This is the first law in the country that allows women to hold abortionists accountable for negligent pre-abortion screening and counseling," said Paula Talley, one of the organizers of Stop Forced Abortions. "If it had been in place in 1980, I would have been spared the years of grief, depression, and substance use which followed my own unwanted abortion."

Judicial rules normally do not allow women to sue for psychological injuries after abortion unless the injuries stem from a physical injury. The new Nebraska law is the first law in the country to eliminate the requirement that the woman must prove that psychological injuries from an abortion stemmed from a physical injury.

The law also puts into place a specific standard of care for appropriate pre-abortion screening. Abortion providers may be sued for negligence if they fail to ask a woman if she is being pressured, coerced or forced to have an abortion. They may also be held liable if they fail to screen women for other statistically significant risk factors that may put them at higher risk for psychological or physical complications following an abortion.

Research has found that as many as 64 percent of women feel pressured by others to have an abortion. In addition, one study found that even though more than half of women reported feeling rushed or uncertain about the abortion, 84 percent said they did not receive adequate counseling and 67 percent said they weren't counseled at all.

"My abortion counselor never asked if I was being pressured," Talley said. "Nor did she inquire about my psychological history. If she had, she should have known that I was at higher risk of experiencing post-abortion trauma because I had a history of depression. Plus, I had moral beliefs against abortion, but I was rushing into a poorly thought out decision because I was so filled with fear and panic.

"If the abortion counselor had bothered to ask the right questions, she would have seen that I was more likely to be hurt than helped by the abortion, But I was never warned. They just took my money, and my baby, no questions asked."

The measure easily sailed through Nebraska's Unicameral Legislature with a 40-9 majority. Nebraska Gov. Dave Heineman is scheduled to sign the bill today. The law will go into effect on July 15.

The law requires that abortion providers must screen women for risk factors that have been established in the research for a year or more prior to the abortion. Legislators opposing the bill argued that it would be nearly impossible for abortion providers to keep track of all the research on risks factors. The bill's sponsor, Sen. Cap Dierks, disagreed.

Dierks said that a report from the American Psychological Association found that an average of 12 studies per year are published on the subject.

"Surely it’s not too much to ask abortion providers to read 12 studies per year," Dierks said. "Women rightly expect their doctors to keep up to date on their area of specialty. Why would we want the standard of care for abortion to be less than that for other medical procedures?"

Among those opposing the bill was Sen. Danielle Conrad, who argued that abortion providers are already giving women sufficient information.

"We do not need an additional layer on top of that," she said. She also argued that the bill was unconstitutional and placed an undue burden on women.

But Sen. Brad Ashford, an attorney and the chair of the Judiciary Committee that reviewed the bill, told the Legislature that the law did not raise any obvious constitutional issues because it relies only on civil remedies and does not place any burdens on women. He said that any burden caused by the screening requirements falls primarily on the abortion provider, not on the women whose rights are expanded by the bill.

Greg Schleppenbach, Director of Pro-Life Activities for the Nebraska Catholic Conference, led the lobbying effort for the legislation. He said that "women deserve better than one-size-fits-all counselingor no counseling at all."

"Ninety-nine percent of abortions in Nebraska take place in two abortion facilities," Schleppenbach said. "Their informed consent counseling consists of recorded phone messages 24 hours before the abortions and most women never see the abortion provider except during the 10 minutes or so he is doing the abortion. Women deserve better."

Schleppenbach said that the stories he had heard from women who have suffered from emotional problems after an abortion provided the impetus for passing legislation that would improve their right to redress.

"Most people don’t realize that under the existing rules of law, it is essentially impossible for women to hold abortion providers liable for inadequate screening and counseling," he said. "This is why the standard of care for abortion counseling has fallen to such a dismal level. If abortion providers face no liability for inadequate screening, cost-cutting measures will inevitably lead to an assembly line process with one-size-fits-all counseling.”

Dierks’ bill was patterned after model legislation called the Protection from Coerced and Unsafe Abortions Act. The legislation was developed by the Elliot Institute, a post-abortion research and education group based in Springfield, Ill.

Elliot Institute Director Dr. David Reardon said that inspiration for the bill came from a 1985 article written by the group Feminists for Life.

"The article was identifying obstacles and loopholes in the law that made it nearly impossible for women to recover damages for abortion related injuries," Reardon said. "Plus, the short statute of limitations when dealing with medical procedures meant it was likely that women injured by abortion wouldn't be emotionally ready to come forward until it was too late. The article said this was similar to cases in which women who have been raped may feel too ashamed or afraid to come forward."

Reardon—who is the author of numerous studies linking abortion to higher rates of suicide, depression, anxiety, and substance abuse—said these observations shed new light on something he had been observing in the medical literature on abortion.

"Nearly every study done on abortion and mental health, whether before or since 1985, has found that certain subgroups of women were at higher risk of negative reactions," he said. "Most of these studies have been done by pro-choice researchers, so you can’t accuse them of bias. Many of the researchers openly recommend that these risk factors should be used to screen for at-risk patients so they could be given more pre- and post-abortion counseling."

One such study was published in a 1972 issue of Family Planning Perspectives, a publication of Planned Parenthood. The authors of that study found four risk factors that reliably predicted more post-abortion problems. They suggested that pre-abortion screening should be done using a short psychological profile which could be administered for less than a dollar per patient.

A similar 1977 study identified five risk factors that accurately predicted which women would have subsequent problems adjusting after abortion 72 percent of the time. But in interviewing women who were experiencing problems after abortion, Reardon found that abortion providers were ignoring the research. He was unable to find evidence that even one clinic in the country was doing evidenced-based pre-abortion screening.

Reardon said that this observation, combined with the insights from the Feminists for Life article, made him realize that the loophole in the law protecting abortion providers from liability for psychological injuries meant they could simply ignore all of the research on screening and risk factors. In fact, if proper screening led to a reduction of abortion rates among coerced and high risk women, they might actually lose money.

Reardon believes this lack of screening is an act of a medical negligence in and of itself.

"Without screening, it is impossible for a doctor to give informed medical advice," he said. "Performing an abortion on request, regardless of the risks, is contrary to both medical ethics and the law."

"If a woman walks into a doctor’s office and says, 'I have a lump in my breast and need a mastectomy,' and the doctor says ‘Jump up on the table and we’ll take it right out,' we don’t call that medicine. We call that malpractice. Added to that, the situation with abortion is even worse because many women and girls are having abortions they don’t really want, due to lack of resources and support, pressure, coercion, threats, emotional blackmail, disinformation or even force from others."

Reardon said that while Roe v Wade created a right for women to seek an abortion in consultation with a physician, the Supreme Court also wrote that "the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician."

Reardon believes that Roe intended for doctors to be held liable for inadequate screening and counseling.

"Nebraska has now done what the states should have been doing a long time ago," he said. "They have removed the loopholes in civil law that prevent women from being able to hold abortionists accountable for the negligent screening that predictably leads to so many unwanted, unsafe, and unnecessary abortions."

Springfield, IL (July 15, 2010) -- A new Nebraska law that is the first to allow women to sue for psychological injuries related to abortion went into effect today, the Stop Forced Abortions Alliance has announced.

Until now, women who experienced psychological problems after an abortion had no standing to sue abortionists for subsequent psychological problems, even when the women were coerced into unwanted abortions. The Nebraska law removes that legal obstacle and also clarifies the standard of care for appropriate pre-abortion screening.

Enactment of Law Survives First Court Challenge

Nebraska's Planned Parenthood affiliate filed suit in federal court last month seeking an injunction and declaratory judgment that the law was unconstitutional. In a preliminary ruling issued yesterday, the federal district court ruled that neither the effective date of the bill nor the law itself could be enjoined, clearing the way for the law to go into effect July 15.

District Judge Laurie Smith Camp also rejected Planned Parenthood's motion to strike the legislature's finding of fact that was included in the law, which states that "the existing standard of care for pre-abortion screening and counseling is not always adequate to protect the health needs of women."

However, the court did grant a preliminary injunction to protect Planned Parenthood and its employees from any criminal penalties, fines, or loss of license in the event they fail to provide the standard of care required by the law. This does not effect women's ability to sue for negligent screening or psychological damages while the injunction is in effect.

Specifically, the injunction prohibits the state attorney general, the governor, and other officers of the state from seeking to use the new law as a basis for revoking the licenses of abortion clinics or for engaging in other disciplinary measures against clinics or their staff.

Proponents said the law was never intended to provide for prosecution by state authorities, but was simply meant to allow abortion patients or their survivors to more easily hold abortion providers accountable for negligent screening. That aspect of the law has not been affected by the ruling.

Number of Coerced Abortions Expected to Drop

A key aspect of the law is that it exposes abortion providers to lawsuits for negligence if they fail to ask a woman if she is being pressured, coerced or forced to undergo an unwanted abortion.

This could affect many women, as one study found that 64 percent of women who had abortions reported that they felt pressured by others to do so. Numerous studies have also shown that women who are pressured to abort are at much higher risk of experiencing psychological complications following the abortion.

While the new law does not ban abortions in such cases, supporters say it will give women who are being pressured or coerced an opportunity to discuss the situation and receive information about how coerced and unwanted abortion increases their risk of more severe post-abortion reactions. Supporters believe this new standard for screening and counseling will help prevent many unwanted abortions.

Paula Talley, an organizer of the Stop Forced Abortions Alliance and backer of the bill, believes having such a law 30 years ago would have prevented her from undergoing an unwanted abortion.

"If this law had been in place in 1980, I would have been spared the years of grief, depression, and substance use which followed my own unwanted abortion," Talley said. "My abortion counselor never asked if I was being pressured, nor did she inquire about my psychological history. If she had, she would have known that I was at higher risk of experiencing post-abortion trauma because I had a history of depression."

Talley said that she was being pressured to abort by her employer, an issue that was never addressed by abortion clinic staff. Although she had moral beliefs against abortion recognized by researchers as a risk factor for psychological problems after abortion--feelings of fear and panic made her feel she had to undergo the abortion.

"If the abortion counselor had bothered to ask the right questions, she would have seen that I was more likely to be hurt than helped by the abortion," Talley added. "But I was never warned. They just took my money, and my baby, no questions asked."

Neglected Feature of Roe v. Wade Will Be Easier to Enforce

Supporters of the negligent screening law also say that it helps to eliminate legal obstacles that allow women to hold abortion providers properly liable for failing to give them medically sound advice.

Dr. David Reardon, a biomedical ethicist and director of the Elliot Institute, a post-abortion research and educational organization, said that abortion providers have often shirked their duty to provide each woman with an informed medical opinion that is appropriate to her unique case.

"Any counseling provided by abortion clinics is often 'one-size fits all,'" Reardon said. "That's very inappropriate, since each woman has circumstances and risks that are unique to her."

Reardon, who has done extensive research regarding post-abortion complications, believes inadequate screening is an act of medical negligence.

"Without screening, it is impossible for a doctor to give informed medical advice," he said. "Performing an abortion on request, regardless of the risks, is contrary to both medical ethics and the stated principles found in Roe v. Wade."

He pointed out that "if a woman walks into a doctor’s office and says, 'I have a lump in my breast and need a mastectomy,' and the doctor says 'Jump up on the table and we'll take it right out,' we don't call that medicine. We call that malpractice."

Reardon also said out that many abortion facilities appear to ignore the fact that many women are pressured or coerced into undergoing unwanted abortions to satisfy the demands of boyfriends, husbands, parents, employers, or even their doctors or counselors.

"Many women report that their abortion counselors sided with an abusive partner or parent in pushing them to have an unwanted abortion," he said. "Without this new law, women in such cases have little or no prospect of ever holding abortion clinics accountable for such egregious behavior."

In short, Reardon believes the Nebraska law will clarify a neglected principle found in Roe v. Wade. While Roe determined that women had a right to seek an abortion in consultation with their physician, the Supreme Court also ruled that "the abortion decision in all its aspects is inherently, and primarily, a medical decision, and basic responsibility for it must rest with the physician."

Reardon said this means doctors have an obligation to protect women from unwanted, unsafe, and unnecessary abortions.

"This goal can only be accomplished by removing the legal barriers that prevent women from holding doctors properly liable for inadequate screening and counseling," he said.

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