New Nebraska Law Enables Women to Sue For Psychological Injuries Related to Abortion

By Susan Brinkmann, OCDS
Staff Journalist

Nebraska has just become the first state in the nation that will allow women to sue doctors for psychological injuries related to unwanted, coerced, or unsafe abortions.

According to a press release from the Stop Forced Abortions Alliance, a coalition of groups and individuals concerned about abortion-related injuries to women, the new bill eliminates the requirement that a 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.

For instance, 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,” the release says. “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.”

“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.”

The law, sponsored by Nebraska Senator Cap Dierks, passed the state Legislature with a 40-9 majority. Nebraska Gov. Dave Heineman is scheduled to sign the bill today with the law scheduled to go into effect on July 15.

Opponents of the law argued that it would be nearly impossible for abortion providers to keep track of all the research on risks factors, but Sen. Dierks  disagreed. He pointed out that according to the American Psychological Association, 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?”

Greg Schleppenbach, Director of Pro-Life Activities for the Nebraska Catholic Conference, led the lobbying effort for the legislation and said “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.” 

The new law was fashioned after model legislation known as the Protection from Coerced and Unsafe Abortions Act which 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 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.”

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