Proposed Iowa abortion law allows women to sue for mental or physical distress after procedure

DES MOINES - A woman who suffers mental or physical distress in the aftermath of an abortion procedure would have a legal cause to bring civil action for damages against the physician who terminated the pregnancy under legislation getting consideration in the Iowa Legislature.

Sen. Mark Chelgren, R-Ottumwa, said the bill is designed to protect women, but critics say Senate File 26 will have a chilling effect on doctors who provide a controversial medical procedure and likely would not withstand a challenge in court.

The legislation, which cleared an initial subcommittee discussion Tuesday, seeks to establish legal recourse for a woman who suffers any emotional distress independent of a physical injury that she alleges was the result of a physician's 'negligence or failure to obtain informed consent before performance of the abortion.” The bill's provisions would not apply to situations where an abortion was performed due to a medical emergency.

Under the proposal, legal action seeking to recover damages could be brought against a physician at any time during the woman's lifetime and indicates that her signing a consent form detailing the procedure's risks would not negate the civil cause of action but could reduce her damage recovery.

Chelgren said the landmark U.S. Supreme Court decision that allowed for legal abortion states it is incumbent upon each state to protect both the physical and mental well-being of the woman in the performance of the procedure.

'That's exactly what the bill does,” he said in pushing to extend medical malpractice provisions to include mental duress from an abortion procedure. 'I want to make sure that we protect mothers and protect women from all sides of the equation.”

'It's a question of whether or not somebody who in good, healthy mind is sold a bill of goods that turns out to be something that it's not,” Chelgren added. 'When someone is under a lot of stress and they're making decisions, we need medical professionals who are looking after their best interests and not looking after how much money they can make off them.”

However, Sen. Nate Boulton, D-Des Moines, called the bill a legislative overreach in providing a cause of civil action and recovery of damages in circumstances where there was no error in the medical procedure or problem in delivering a service.

'It's very rare, if not a completely novel thing, to introduce a cause of action, to bring a lawsuit against someone who you cannot say did anything wrong,” noted Boulton, who said S.F. 26 would introduce a legal premise 'that would be wholly foreign to medical malpractice in our state and in our country.”

'In this legislation I did not see any statute of limitation period in terms of medical liability so this would really be a major change to the landscape in Iowa,” Boulton added. 'This concept is really kind of an outside-the-box thinking of an approach to the issue and I just don't think as you look at the legal merits of it that it can stand on all fours.”

If the bill were to become law, he said, it likely would become very difficult for a doctor who provides safe and legal abortion services to find any kind of medical liability insurance and would have a 'chilling effect” on physicians and clinics that would affect access. He said the effect of the law would be to 'run providers out of our state.”

'I just don't see this as being an appropriate piece of legislation for us to consider,” said Boulton. 'It's tough to predict what the future of this bill will look like at the governor's desk. I think without some major reform I don't think this is going to get very far.”

Gov. Terry Branstad, who is ill this week and did not attend his weekly news conference, in the past has been resistant to legislative changes that appeared to be headed for legal entanglements that resulted from protracted challenges in other states.

Lt. Gov. Kim Reynolds, who ultimately could decide the fate of Senate File 26 if it clears the legislative process and she becomes governor once Branstad is confirmed as new U.S. ambassador to China, said she is taking a 'wait-and-see” approach although she concurred that 'it doesn't really serve the purpose to head down a path where it just gets tied up in the courts and nothing ever happens.”

Reynolds said she will let the legislative process run its course and give both sides an opportunity to 'weigh in” on the issue.

'We're going to wait and let the process take its course,” she said. 'I want to see what the bill looks like in its final form.”

Before moving the bill to the Senate Judiciary Committee on a 2-1 vote, committee members indicated they would like to see the measure amended to establish some time limitation for bringing a claim similar to other medical procedures.

Comments: (515) 243-7220; rod.boshart@thegazette.com