# 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:** 6
**Author:** ![gonzomax](https://avatars.discourse-cdn.com/v4/letter/g/e8c25b/32.png) [@gonzomax](https://boards.straightdope.com/u/gonzomax)\ **Post date:** [April 28, 2010, 6:55pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/101 "2010-04-28T18:55:53Z")
> [@AboutAsWeirdAsYouCanGet](#): > > Well, I can see both sides. I DO think that parents should have the right to know, so they could maybe “withdraw life support” in the case of profound birth defects like anacephaly. (and in the case of profound birth defects, abortion IS pretty much withdrawing life support) > However, in a lot of cases the parents are always " boo hoo hoo! My child isn’t “perfect”" They equate something like a mild cleft palate with something like profound mental retardation. > I have interacted with a lot of parents of special needs kids…and it does seem like initially they can be very superfical and unaccepting about disabilty/difference. And we’re talking about kids with MILD issues, not nessarily the ones who are profoundly intelellectucally disabled with ten million medical problems. So because you have expertise in the field, you should make the decision. You are qualified to determine what degree of defect they should accept.The woman carrying the child should not be allowed to make the decision. It is none of her business. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [April 28, 2010, 7:07pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/102 "2010-04-28T19:07:38Z")
I have to admit… I don’t care if a fetus gets aborted for minor or even trivial medical reasons, or if it’s timing is bad (i.e. had it been conceived a few months later, everything would have been fine) or if the mother is superstitious about months with “R” in them or for any reason or for no reason at all. I wasn’t aware one needed a reason to exercise a right. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 28, 2010, 7:10pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/103 "2010-04-28T19:10:11Z")
> [@ShadowFacts](#): > > This is a thread about laws, but that does not mean that only lawyers can reply, or that only legal arguments are valid. There are medical and moral questions involved as well, and I think those that have weighed in intelligently on those issues would be annoyed to have their thoughts dismissed as you’ve just done, counselor. Only legal arguments have a snowball’s chance in hell of striking down the law as unconstitutional. Medical and moral issues are worthy of consideration, but ultimately, there must be a legal reason why this law should be struck down. I haven’t seen one offered beyond the paraphrased “well, it’s obviously an undue burden”. And for the 4th time in this thread…I am not condoning these laws. I’d prefer to challenge them. I am pro choice. Have been a long time. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2010, 7:11pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/104 "2010-04-28T19:11:15Z")
> [@Oakminster](#): > > I see a lot of people saying bad law, mean anti-abortion people, dumb, stupid, icky-poo. What I do not see is anyone calmly laying out a reasoned argument for how the ultrasound law violates existing law, preferably with citations to supporting authority. > > I’ve laid out the basics of arguments the State may raise in defense of the laws, albeit with minimal cites–I mention only _Casey_. Anyone care to do the same (or better) for the Plaintiff’s side? Well, I think this law is constitutional, albeit poor public policy, so I’m not the best choice to attack it on those grounds. I would imagine the best choice would be to argue that the Casey “undue burden” standard (a gift from O’Connor and Akron v. Akron Center for Reproductive Health) applies here. It was that standard that Casey used to kill the spousal consent law, although it upheld the informed consent law at issue. Obviously, “informed consent” is what’s at issue here, but the Pennsylvania informed consent law said nothing about intrusive ultrasound; it merely required that doctors provide women with information about the risks of abortion and possible post-abortion complications. So, yeah – if I were arguing against the constitutionality of this measure, I;d say that Casey’s undue burden standard is met by the invasive ultrasound requirement. ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [April 28, 2010, 7:14pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/105 "2010-04-28T19:14:17Z")
> [@Oakminster](#): > > Only legal arguments have a snowball’s chance in hell of striking down the law as unconstitutional. Is this really the point of what we are doing here? ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 28, 2010, 7:15pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/106 "2010-04-28T19:15:09Z")
> [@Bricker](#): > > Well, I think this law is constitutional, albeit poor public policy, so I’m not the best choice to attack it on those grounds. I would imagine the best choice would be to argue that the Casey “undue burden” standard (a gift from O’Connor and Akron v. Akron Center for Reproductive Health) applies here. It was that standard that Casey used to kill the spousal consent law, although it upheld the informed consent law at issue. Obviously, “informed consent” is what’s at issue here, but the Pennsylvania informed consent law said nothing about intrusive ultrasound; it merely required that doctors provide women with information about the risks of abortion and possible post-abortion complications. > > So, yeah – if I were arguing against the constitutionality of this measure, I;d say that Casey’s undue burden standard is met by the invasive ultrasound requirement. That’s the first argument that comes to my mind, too. However, one counter is that ultrasound provides more or better information on which the woman can base her informed consent. Given the current SCOTUS, I think this law has a pretty good chance of surviving a challenge. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 28, 2010, 7:18pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/107 "2010-04-28T19:18:58Z")
> [@Maeglin](#): > > Is this really the point of what we are doing here? I think so. If we are not arguing about whether the law is or is not constitutional, then we’re just rehashing the same old thing. “Those who oppose my position are teh evul”, which goes nowhere. If you really think it’s a bad law, then we need a reason to strike it. Obviously one or more challenges are going to be filed. Everybody knows that. The law will ultimately stand or not on the strength of those arguments. ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [April 28, 2010, 7:19pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/108 "2010-04-28T19:19:50Z")
> [@Oakminster](#): > > I think so. If we are not arguing about whether the law is or is not constitutional, then we’re just rehashing the same old thing. “Those who oppose my position are teh evul”, which goes nowhere. If you really think it’s a bad law, then we need a reason to strike it. > > Obviously one or more challenges are going to be filed. Everybody knows that. The law will ultimately stand or not on the strength of those arguments. It’s clear that you want to argue constitutionality. But this hardly seems to be the only relevant line of inquiry. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2010, 7:20pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/109 "2010-04-28T19:20:08Z")
> [@Maeglin](#): > > Is this really the point of what we are doing here? On the first page alone, the following posts purport to make legal arguments: > [@Zakalwe](#): > > You do? Really? What state interest is served by any of the referenced laws? > [@Little\_Nemo](#): > > You want to see some lawyers at work? Wait until the first children are born with conditions that might have been addressable with prenatal treatment. > [@LavenderBlue](#): > > Anything else is a gross violation of her civil rights. I certainly hope any doctor who does so is held fully accountable for the costs of caring for said child. > [@tumbleddown](#): > > What’s hyperbolic about it? You know the definition of sodomy. In what way is forcing a woman to have a device put into her vagina without medical necessity anything other than sodomy? So I would say yes, in part that’s what we’re really doing here. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2010, 7:22pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/110 "2010-04-28T19:22:42Z")
> [@Oakminster](#): > > That’s the first argument that comes to my mind, too. However, one counter is that ultrasound provides more or better information on which the woman can base her informed consent. Given the current SCOTUS, I think this law has a pretty good chance of surviving a challenge. Agreed, although it better have a severability clause, because at the very least the specific requirement for intravaginal ultrasound would seem more vulnerable to an undue burden challenge than the rest of the statute. ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [April 28, 2010, 7:23pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/111 "2010-04-28T19:23:55Z")
> [@Bricker](#): > > On the first page alone, the following posts purport to make legal arguments: > > So I would say yes, in part that’s what we’re really doing here. I have seen a lot of legal arguments. These do not resemble legal arguments in even a passing way. ---
**Author:** ![Oakminster](https://avatars.discourse-cdn.com/v4/letter/o/77aa72/32.png) [@Oakminster](https://boards.straightdope.com/u/Oakminster)\ **Post date:** [April 28, 2010, 7:26pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/112 "2010-04-28T19:26:16Z")
> [@Maeglin](#): > > It’s clear that you want to argue constitutionality. But this hardly seems to be the only relevant line of inquiry. Again, I’d much rather argue UNconstitutionality. I just think it’s an uphill battle in this instance. The same old “Baby Killer!” vs “Woman Hater!” routine has been done to death here. ---
**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 28, 2010, 7:27pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/113 "2010-04-28T19:27:17Z")
> [@Bricker](#): > > Agreed, although it better have a severability clause, because at the very least the specific requirement for intravaginal ultrasound would seem more vulnerable to an undue burden challenge than the rest of the statute. The assertion has been made in this thread, but not backed up by medical experts, that the ultrasound is a medical necessity and that this law only requires that the doctor show the woman the result. If that is the case, are they still in “undue burden” territory? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2010, 7:27pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/114 "2010-04-28T19:27:47Z")
> [@ShadowFacts](#): > > This is a thread about laws, but that does not mean that only lawyers can reply, or that only legal arguments are valid. There are medical and moral questions involved as well, and I think those that have weighed in intelligently on those issues would be annoyed to have their thoughts dismissed as you’ve just done, counselor. The only problem with those moral and medical questions is… it’s kinda late. By that I mean: the law is passed. It’s been sustained by a majority necessary to override a veto. It’s the law of the state. To reverse it, the makeup of the state legislature has to change dramatically, or a court must decide that it’s violative of the constitution. And that latter choice involves legal arguments. We may all agree that the law is medically unsound and morally bereft, but our solemn agreement on these issues will not change the law one whit. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2010, 7:33pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/115 "2010-04-28T19:33:15Z")
> [@Maeglin](#): > > I have seen a lot of legal arguments. These do not resemble legal arguments in even a passing way. _You do? Really? What state interest is served by any of the referenced laws?_ How does one answer that, except by reference to the LAW? Why does he ask about “state interest” if not in reference to the rational basis test, a LEGAL test? _You want to see some lawyers at work? Wait until the first children are born with conditions that might have been addressable with prenatal treatment._ A clear argument that children born with conditions will have some LEGAL claim against the doctors, claims under the LAW that will be advanced by LAWyers working in support of the LEGAL interests of the parents. Filing tort claims – you know, LAWsuits. \*Anything else is a gross violation of her civil rights. I certainly hope any doctor who does so is held fully accountable for the costs of caring for said child. \* How would that doctor be held fully accountable for costs? By robbing him in an alley, every month, for the exact costs of medical treatment? Or by suing him in a LAWsuit, in a LEGAL forum like a court? Of course those were all legal arguments. What the hell do you think a legal argument is? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2010, 7:34pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/116 "2010-04-28T19:34:47Z")
> [@John\_Mace](#): > > The assertion has been made in this thread, but not backed up by medical experts, that the ultrasound is a medical necessity and that this law only requires that the doctor show the woman the result. If that is the case, are they still in “undue burden” territory? I doubt they are anyway, but this weakens that claim, if true. ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [April 28, 2010, 7:35pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/117 "2010-04-28T19:35:13Z")
> [@Oakminster](#): > > Again, I’d much rather argue UNconstitutionality. I just think it’s an uphill battle in this instance. The same old “Baby Killer!” vs “Woman Hater!” routine has been done to death here. I didn’t mean to imply that your opinion is that this law is constitutional just that this is the only relevant issue. We have a lot of politics discussions here. Suppose I believe that the best (perhaps only useful) way to talk and argue about politics is using a positive political framework. In other words, game theory and econometrics. Imagine I barge into a discussion any time people try to articulate their political opinions and cut their balls off because they don’t know how to make proper positive arguments. They aren’t trying to publish their opinions or advise policymakers. People just sound off with their opinions and insights. The alternative to subtle theory with interesting results is not “Bush bad, socialism good”. So it really would not be fair for me to try to restrict the scope of a political discussion for my own aesthetic reasons. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [April 28, 2010, 7:40pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/118 "2010-04-28T19:40:13Z")
> [@Maeglin](#): > > People just sound off with their opinions and insights. In your view, why do we have both a “Great Debates” and an “In My Humble Opinion” forum? ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [April 28, 2010, 7:42pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/119 "2010-04-28T19:42:49Z")
> [@Bricker](#): > > Of course those were all legal arguments. What the hell do you think a legal argument is? An argument that references the law or lawyers seems to be a bit of an open-ended definition. Let’s take a look. Here’s a few definitions. [Legal argument](http://www.legalargument.net/argumentnotes.html#definition) [Legal argument](http://mitpress.mit.edu/catalog/item/default.asp?ttype=2&tid=4156) [Legal argument](http://www.scribd.com/doc/735/The-Range-of-Legal-Arguments) The arguments you cite bear not even a passing resemblance to the structure laid out in the above documents. What do you think a legal argument is? ---
**Author:** ![Maeglin](https://avatars.discourse-cdn.com/v4/letter/m/8baadc/32.png) [@Maeglin](https://boards.straightdope.com/u/Maeglin)\ **Post date:** [April 28, 2010, 7:46pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/120 "2010-04-28T19:46:18Z")
> [@Bricker](#): > > In your view, why do we have both a “Great Debates” and an “In My Humble Opinion” forum? Because a lot of people find discussing politics and religion to be offensive or unpleasant. [Previous page](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572.md?page=5) [Next page](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572.md?page=7)