# Oklahoma law: doctors can't be sued for hiding birth defects from parents **URL:** \ **Category:** Great Debates\ **Created:** [April 27, 2010, 10:53pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572 "2010-04-27T22:53:28Z")\ **Posts on this page:** 20\ **Page:** 10
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 30, 2010, 2:54pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/181 "2010-04-30T14:54:25Z")
> [@Oakminster](#): > > Soooo…I don’t like a law, and have expressed interest in representing plaintiffs challenging that law, but recognize that it appears to be constitutional. > > You find this a distasteful position to hold, but can’t be bothered to cite anything in support of your position that the law is unconstitutional, on some unspecified legal theory? > > Does that sum it up? “But, judge, the law REALLY sucks!” ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [April 30, 2010, 4:01pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/182 "2010-04-30T16:01:18Z")
I find it ironic that **Bricker’s** first two cents in this thread was to decry rape as a red herring, and yet the biggest red herring in this discussion is whether this horribly unethical law meets constitutional muster. It’s pedantry of the most obnoxious kind, because legality is besides the point. We could make jaywalking a felony tomorrow and still be legally sound. Doesn’t mean we should. I feel like inviting a whole bunch of physicists into this discussion so they can hijack it into a debate about whether the Oklahoma malpractice sheild violates Unified Field Theory. Their jibberjabber would probably be more interesting to me than the lawyerly jibberjabber going on now. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 30, 2010, 4:04pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/183 "2010-04-30T16:04:57Z")
> [@you\_with\_the\_face](#): > > We could make jaywalking a felony tomorrow and still be legally sound. Doesn’t mean we should. Correct, of course. But this… > [@](#): > > I find it ironic that **Bricker’s** first two cents in this thread was to decry rape as a red herring, and yet the biggest red herring in this discussion is whether this horribly unethical law meets constitutional muster. It’s pedantry of the most obnoxious kind, because legality is besides the point. Is NOT beside the point. The law exists. It’s passed. It’s in effect. So what now? If legality is besides the point, then is the point simply to agree with each other that the law is unwise? Seems to me the point – or at least _A_ point – is to discuss how this unwise, undesirable law might be removed. Isn’t it? And doesn’t that discussion sort of.. you know… involve law, a bit? Kinda? ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 4:16pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/184 "2010-04-30T16:16:27Z")
> [@kaylasdad99](#): > > So, let’s say Plaintiff X comes to you, having undergone the experience I outlined in [this post](http://boards.straightdope.com/sdmb/showpost.php?p=12395294&postcount=150). You agree to represent the client, and head to court to challenge the law (I recognize that I’m skipping a step or two in this narrative). On what basis are you challenging the validity of the law? It’s going to be tough. Lacking any obvious constitutional defect, I’d probably dig in to the legislative history of the law, hoping to find some procedural defect in the process leading to enactment. Maybe the bill was supposed to sit for X days before being voted on. Maybe there is some difference between the version of the bill passed in the house or the senate. Something like that. Another angle of attack would be to examine the actual text, and see if there is any ambiguity therein. A third angle would be to see if the law can be said to conflict with another law–possibly even the ultrasound law itself–arguing that the Court should presume the legislature did not intend an absurd result, and that it is absurd to require an ultrasound in the name of informed consent, yet then allow the doctor to withhold portions of the results. This is a stretch, as the plaintiff here was not necessarily seeking an abortion, and may not have triggered the ultrasound requirement under the statute. The fact that the malpractice shield effectively allows, but does not require, a doctor to withhold information makes it tough to challenge on a theory relating to medical ethics. There is no apparent penalty for a doctor that chooses to properly disclose all information. You’d also be representing a doctor challenging the law in this variant scenario. Going even further afield, it might be possible to argue that the law violates the Establishment Clause, by enacting what amounts to a religious doctrine that disfavors other religions or non-religion. It is also possible that a lawyer filing such a flimsy challenge might get sanctioned under Rule 11. More research is needed. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 4:24pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/185 "2010-04-30T16:24:24Z")
> [@you\_with\_the\_face](#): > > I find it ironic that **Bricker’s** first two cents in this thread was to decry rape as a red herring, and yet the biggest red herring in this discussion is whether this horribly unethical law meets constitutional muster. It’s pedantry of the most obnoxious kind, because legality is besides the point. We could make jaywalking a felony tomorrow and still be legally sound. Doesn’t mean we should. I don’t think anyone has argued that these laws (ultrasound and malpractice shield) are good, wise, or otherwise desirable laws. I think most people in this thread oppose these laws. The problem is, there ARE laws, and they WILL be enforced/applied, unless and until a Court intervenes. A Court is not going to intervene until some lawyer persuades the judge that the law is invalid under the Constitution, or for some other reason. To my knowledge, no court has ever stricken a law on the grounds that said law is “Icky Poo”. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [April 30, 2010, 4:26pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/186 "2010-04-30T16:26:12Z")
> [@Bricker](#): > > So what now? If legality is besides the point, then is the point simply to agree with each other that the law is unwise? Well, the point of any debate is to talk about the pros and cons. What are the pros of this this law? What are the cons? Stating repeatedly that the law doesn’t violate the constitution is nice and all, but what is the point of asserting this like a broken record if, according to the disclaimers, you think the law is unwise? I can understand doing this if anyone in this thread raised constitutionality as a debating point, but actually **Oakminster** was the first person to raise it and is the main person stressing it over and over again. Surely it’s possible to challenge a law on the basis of being _bad policy_ without needing it be in violation of the constitution. Let me pick an easy example: slavery. Laws allowing slavery were overturned in many states prior to the 13th amendment. Why? Because the people and/or powers-that-be determined laws permiting slavery to be Bad Policy. Now if this miraculous feat could have happened back in those days, why does it seem inconceivable to you that we could actually discuss this law and how bad it is without trying to first determine whether it is constitutional? ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [April 30, 2010, 4:27pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/187 "2010-04-30T16:27:08Z")
Personally, I’m much more interested in the debate about the constitutionality of this law. Especially in the context of a debate on this MB, where the law itself is not going to get much, if any, support. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [April 30, 2010, 4:28pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/188 "2010-04-30T16:28:55Z")
Thank you for your response, **Oakminster**. Could I trouble you for some education regarding whether the doctrine of “rational basis” is an absolute trump to all challenges? ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 4:44pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/189 "2010-04-30T16:44:54Z")
> [@kaylasdad99](#): > > Thank you for your response, **Oakminster**. Could I trouble you for some education regarding whether the doctrine of “rational basis” is an absolute trump to all challenges? It is not an absolute trump. Here’s the [Rational Basis review](http://en.wikipedia.org/wiki/Rational_basis_review) page at wiki. In pertinent part, it says: _Application of the rational basis test almost always means a ruling favorable to the government, as the Court will normally show deference under the rational basis test. However, in certain cases where a “quasi-suspect” class is involved and the interest involved is also strong, the Supreme Court seems to give the rational basis test more “bite” or “teeth”. In Cleburne v. Cleburne Living Center, Plyler v. Doe, and Romer v. Evans, the Court purported to use the rational basis test, and yet it overturned the challenged law in each of these cases. The difference between the “rational basis” test and the “rational basis with bite” test is whether the court tries to come up with its own ideas for legitimate government interests, or whether the court insists that the government have already stated that interest prior to the ruling.[citation needed] Practically, the Court almost never strikes down a law under rational basis review; when it does, the case is often said to have been decided using “rational basis with a bite.”_ ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 30, 2010, 4:59pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/190 "2010-04-30T16:59:12Z")
> [@you\_with\_the\_face](#): > > Surely it’s possible to challenge a law on the basis of being _bad policy_ without needing it be in violation of the constitution. Let me pick an easy example: slavery. Laws allowing slavery were overturned in many states prior to the 13th amendment. Why? Because the people and/or powers-that-be determined laws permiting slavery to be Bad Policy. > > Now if this miraculous feat could have happened back in those days, why does it seem inconceivable to you that we could actually discuss this law and how bad it is without trying to first determine whether it is constitutional? The people that would need to be convinced to repeal the law are the same people that enacted it: the legislature. In the case of your example of slavery laws, of course, it was also the legislature that had to act – but enough time had passed that those weren’t the same people in those seats, and times had changed somewhat. They didn’t enact a slavery law in March of 1801 and repeal it in September of 1801. Here, the law was just passed. You’re free to discuss how bad the law is, but it’s likely to fall on deaf legislative ears. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [April 30, 2010, 5:30pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/191 "2010-04-30T17:30:03Z")
> [@Bricker](#): > > Here, the law was just passed. You’re free to discuss how bad the law is, but it’s likely to fall on deaf legislative ears. That would happen anyway, since I’m not a OK resident and neither are most of the posters on this board. Welcome to the world of message boards. My point remains, though. Insisting on the constitutionality of a policy that is clearly bad on grounds that have more to do with ethics than legality is a textbook case of red herring. The fact that legislature can overturn a law means it doesn’t have to violate the consitution to be done away with, which shows that it shouldn’t be what we have to frame this whole damn discussion around. In other words, saying something like “I think this law is unwise, but prove to me it’s unconstitutional” smells like an attempt to actually defend this pile of crap as okay without having the balls to actually do so forthrightly. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [April 30, 2010, 6:03pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/192 "2010-04-30T18:03:12Z")
> [@Oakminster](#): > > The problem is, there ARE laws, and they WILL be enforced/applied, unless and until a Court intervenes. Are you under the impression that Congress can’t repeal laws irrespective of Court involvement? ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 6:08pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/193 "2010-04-30T18:08:59Z")
> [@you\_with\_the\_face](#): > > In other words, saying something like “I think this law is unwise, but prove to me it’s unconstitutional” smells like an attempt to actually defend this pile of crap as okay without having the balls to actually do so forthrightly. I’m pretty confident that my posting record here shows I am willing to express and defend unpopular positions here. If I thought this was a good or desirable law, I’d say so. If I knew of a slam dunk legal argument against the law, I’d post it. I’ve repeatedly invited anyone else to post such an argument. What do you want me to do? Express a legal opinion I do not believe–ie, this law is blatantly unconstitutional on its face, and should be immediately invalidated by the first available judge? Sorry, but I’m not going to do that. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 6:16pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/194 "2010-04-30T18:16:17Z")
> [@you\_with\_the\_face](#): > > Are you under the impression that Congress can’t repeal laws irrespective of Court involvement? No. I am under the impression that the Oklahoma legislature, which overrode the Governor’s veto to pass this law, is probably not going to repeal it in the foreseeable future. I am under the impression that the voters of Oklahoma, who elected the legislature that overrode the Governor’s veto, are probably not going to attempt to repeal the law by ballot initiative. I am under the impression that Oklahoma voters are unlikely to vote in a new legislature likely to repeal this law. I am also under the impression that the U.S. Congress is probably not going to attempt to pre-empt state laws on abortion with federal regulation. That leaves court intervention. Or armed revolt. Or divine intervention. Or time travel. Of those options, court intervention appears to have the best chance of success. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [April 30, 2010, 6:38pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/195 "2010-04-30T18:38:23Z")
> [@Oakminster](#): > > It is not an absolute trump. Here’s the [Rational Basis review](http://en.wikipedia.org/wiki/Rational_basis_review) page at wiki. In pertinent part, it says: > > _Application of the rational basis test almost always means a ruling favorable to the government, as the Court will normally show deference under the rational basis test. However, in certain cases where a “quasi-suspect” class is involved and the interest involved is also strong, the Supreme Court seems to give the rational basis test more “bite” or “teeth”. In Cleburne v. Cleburne Living Center, Plyler v. Doe, and Romer v. Evans, the Court purported to use the rational basis test, and yet it overturned the challenged law in each of these cases. The difference between the “rational basis” test and the “rational basis with bite” test is whether the court tries to come up with its own ideas for legitimate government interests, or whether the court insists that the government have already stated that interest prior to the ruling.[citation needed] Practically, the Court almost never strikes down a law under rational basis review; when it does, the case is often said to have been decided using “rational basis with a bite.”_ I think I see. The impediment to getting the Court to scrutinize for “rational basis with a bite” is that you’d have to shoehorn your client into a “quasi-suspect” class, right? Thanks for your responses. While I’m definitely in over my head, I appreciate the generosity with which posters such as you and **Bricker** share your knowledge. ---
**Author:** ![you\_with\_the\_face](https://avatars.discourse-cdn.com/v4/letter/y/ecccb3/32.png) [@you\_with\_the\_face](https://boards.straightdope.com/u/you_with_the_face)\ **Post date:** [April 30, 2010, 6:39pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/196 "2010-04-30T18:39:14Z")
> [@Oakminster](#): > > I am under the impression that the voters of Oklahoma, who elected the legislature that overrode the Governor’s veto, are probably not going to attempt to repeal the law by ballot initiative. I am under the impression that Oklahoma voters are unlikely to vote in a new legislature likely to repeal this law. Maybe I’m not as pessimistic as you, but I don’t think it’s unreasonable to believe that the legislature won’t repeal the law in the forseeable future. Maybe not tomorrow, but with election cycles being what they are, nobody’s seat is immune from being challenged. People will take suits to the Court, and even if they are unsuccessful, their attempts will keep this issue on the public’s eye. That’s assuming they lose in Court. Despite your claim that the laws are constitutional, the malpractice shield law in particular seems so slippery-sloppery I can’t imagine that it would be all that difficult to make a convincing case against it to a sympathetic judge who isn’t a strict constitutionalist. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [April 30, 2010, 6:45pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/197 "2010-04-30T18:45:11Z")
ISTM that the shield law protects not only puritanical physicians, but incompetent ones, as well. A possible argument against the notion that the legislature was behaving rationally? ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 7:09pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/198 "2010-04-30T19:09:54Z")
> [@kaylasdad99](#): > > ISTM that the shield law protects not only puritanical physicians, but incompetent ones, as well. A possible argument against the notion that the legislature was behaving rationally? Maybe. But the Court can imagine other possible reasons for such a law. Perhaps the legislature wished to limit malpractice liability in order to attract more doctors to practice in the state. OB/GYN practice can generate a lot of malpractice claims. The cost of insurance can deter doctors from practicing in that area. If the legislature provides immunity from some forms of malpractice liability, perhaps the cost of insurance will go down, and more doctors will be available. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 30, 2010, 7:12pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/199 "2010-04-30T19:12:53Z")
> [@you\_with\_the\_face](#): > > That’s assuming they lose in Court. Despite your claim that the laws are constitutional, the malpractice shield law in particular seems so slippery-sloppery I can’t imagine that it would be all that difficult to make a convincing case against it to a sympathetic judge who isn’t a strict constitutionalist. If it’s not all that difficult, why don’t you make the case right here in this very forum? What would be the legal basis of your sympathetic judge’s opinion, and how likely would that basis be to survive appellate review? ---
**Author:** ![MandaJo](https://avatars.discourse-cdn.com/v4/letter/m/ac91a4/32.png) [@MandaJo](https://boards.straightdope.com/u/MandaJo)\ **Post date:** [April 30, 2010, 7:17pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/200 "2010-04-30T19:17:52Z")
> [@you\_with\_the\_face](#): > > Well, the point of any debate is to talk about the pros and cons. > > What are the pros of this this law? What are the cons? It’s just that, as far as I can tell, NO ONE likes this law. So that discussion didn’t go anywhere. It would probably make a good RO thread in the pit. This discussion–on the constitutionality–is interesting and informative, and appropriate to GD. [Previous page](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572.md?page=9) [Next page](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572.md?page=11)