Should Abortionists Be Excluded From Tort Reform?
Should Abortionists Be Excluded From Tort Reform?
The argument will be made that Republicans are the champions of tort reform but here we are trying to broaden an area of the law to encourage more law suits. To address this issue we must try to clarify the reasons given for tort reform and explain either why they do not apply to the abortion industry or why there must be an exception with regard to this industry. The following is my initial attempt to develop this response.
As I understand it, tort reform is intended to protect businesses, especially those which contribute to the economy and employ large numbers of people, from outrageously large awards from juries who think nothing of socking it to the “impersonal, rich corporations.” These limitations on liability are intended to serve the social good by protecting businesses which help the general economy. The problem of industry crippling civil liability awards is especially of concern when the injuries suffered from some defective product have hurt only a very few people, often under unusual circumstances, which the company subsequently sought to correct.
These legitimate concerns for returning a sense or balance to awards for injuries in the civil courts do not apply to the abortion industry for the following reasons.
(1) Abortionists do not employ a significant number of people nor do they contribute to the economy. Therefore, the usual economic arguments for protecting businesses from large lawsuits do not apply here. Whether or not abortionists provide a social good (easy access to cheap abortions) which society values enough to protect them from full and proper liability is a question of opinion which is we are seeking to resolve in this political debate. But there is no reason to automatically include the abortion industry in the same class of businesses which society has determined should be protected from unlimited liability. Indeed, as the following points suggest, there are very good reasons to exclude abortionists from these tort reforms and indeed to expand the rights of abortion patients in order to improve the standard of care.
(2) Normally, all businesses, except for the abortion industry, are subject to direct regulation by local, state, and federal governments. Since these businesses are regulated by the government, it is reasonable to conclude that businesses which abide by these regulations may be partially protected from unlimited liability for injuries. After all, if the injuries are found to be widespread, the government can further tighten the regulations.
But the abortion industry has successfully fought off most government regulations of their trade. For decades the states have tried to directly regulate abuses in the abortion industry but have been blocked by the courts who have interpreted regulation of abortion practices as an infringement on patient/physician rights. Thus, the only avenue left for ensuring that abortionists begin to practice medicine at the highest standard of care is to better empower patients to “regulate” the standard of care through the civil courts.
It is unreasonably self-serving for abortionists to say that they do not want to be subject to state regulation, and at the same time, they want the state to protect them from full and proper liability for the injuries which they inflict on their patients.
The pro-abortionists have argued that the government should stay out of the business of trying to regulate the clinics. Fine. But if the government can’t directly regulate this business, then there should be no limitation on the rights of women to recover damages. If abortionists will not submit to the regulation of the state, then they must be exposed to full civil liability for the injuries suffered by their patients. This is the only way to push the standards of care to a level which will properly protect the health interests of American women.
(3) Tort reform is intended to protect industries from being driven out of business from a few lawsuits over a few injuries in, often, unforeseeable circumstances. It is a presumption of tort reform that most of these businesses are supplying generally safe products. In the case of abortion, the injuries are not rare and they are foreseeable. Both physical and psychological complications are widespread. Furthermore, abortionists are already protected, far too much we would argue, by malpractice laws which are designed to protect legitimate medical practices and place extra obstacles in the way of plaintiffs. Moreover, the psychological disabilities of shame and denial that are associated with abortion generally prevent injured patients from being able to bring suit or to cooperate with an attorney to initiate a law suit in the statute of limitations which apply to medical malpractice in most states.
In short, abortionists injure far more women than any other business or medical practice. Furthermore, they already enjoy, inappropriately I would argue, the protective umbrella of pro-doctor malpractice laws in many states. This is exactly why the standard of care has deteriorated to this horrible state wherein abortion is legal but is still practiced with the standards of the back alley. Only greater exposure to liability, not more protection, will ensure the safety of abortion patients.
(4) Pro-life Republicans will naturally agree that the social value of the abortion industry is negative rather than positive. But still, some who are committed to tort reform may be tempted by a desire for philosophical consistency to argue that we should not carve out exceptions for abortionists because that will open the door to further exceptions for other unfavored industries.
To this objection we must point out that the philosophical ideals underlying tort reform are far less fundamental than the right to life philosophy. The tort reform philosophy must be subject to, and redefined to be consistent with, a fundamental respect for human life and human dignity. The right to life philosophy includes the belief that welfare of a woman and her unborn child are mutually dependant, intertwined by the hand of God Himself. Whenever we hurt a child, we hurt the mother. On the other hand, whenever we help the mother, we help the child.
Abortion, then, inevitably injures both women and children. Abortionists inevitably violate the dignity of women by depriving them of full disclosure, participating in their coercion and exploitation, and in exploiting them in times of crisis with an offer to “solve” their problems with abortions which in fact, do not solve any problems but only exacerbate them. Not a single study shows that women, in any given circumstance, are benefitted by abortion. There is only a widespread presumption that they benefit from abortion because it is something they asked for. But, to paraphrase Scripture, is a child who asks for a poisoned snake ever benefitted by being given one?
As I have more fully argued in Making Abortion Rare, when one begins with the fundamental premise of the sanctity of human life, one must conclude that it can never be wrong to expand the rights of women against the unscrupulous practices of abortionists. Therefore, any tort reform philosophy which would preclude holding abortionists fully liable for the injuries they cause must be in error. It is the tort reform philosophy which must give way and be redefined to reflect a more balanced respect for the rights of individuals and the rights of legitimate businesses.
