# 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:** 7
**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, 7:49pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/121 "2010-04-28T19:49:37Z")
> [@Maeglin](#): > > 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? Yes, that’s true. But if that is truly your view, then perhaps you’d care to identify any posts in this thread that have laid out any arguments, period. You will of course apply the same exacting standard as to form and structure, I trust. ---
**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, 7:53pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/122 "2010-04-28T19:53:02Z")
> [@Maeglin](#): > > Because a lot of people find discussing politics and religion to be offensive or unpleasant. OK. What we have here is a failure to agree on basic premises. You seem to suggest that the only substantive difference between IMHO and GD is the presence of politics or religion (or, presumably, any other offensive or unpleasant topics). I believe that the underlying expectations of each forum are different. In GD, one is expected to provide citation to authority - an unsupported opinion is not welcome; a gratuitous assertion may be equally gratuitously denied. In IMHO, on the other hand, opinions unsupported by evidence are solicited and encouraged, and there is no opprobrium for the poster who posts an opinion without factual support. ---
**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, 7:56pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/123 "2010-04-28T19:56:20Z")
> [@Bricker](#): > > Yes, that’s true. > > But if that is truly your view, then perhaps you’d care to identify any posts in this thread that have laid out any arguments, period. > > You will of course apply the same exacting standard as to form and structure, I trust. People have been presenting [informal arguments](http://writing.colostate.edu/guides/documents/argueoverview/formal.cfm). Pretty much what one would expect on an internet message board. ---
**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, 7:58pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/124 "2010-04-28T19:58:48Z")
> [@Maeglin](#): > > People have been presenting [informal arguments](http://writing.colostate.edu/guides/documents/argueoverview/formal.cfm). Pretty much what one would expect on an internet message board. And the arguments I cited earlier were informal legal arguments. ---
**Author:** ![Chronos](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/chronos/32/134_2.png) [@Chronos](https://boards.straightdope.com/u/Chronos)\ **Post date:** [April 28, 2010, 8:01pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/125 "2010-04-28T20:01:25Z")
> [@](#): > > 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. First of all, it’s completely irrelevant if it “violates existing law”, because laws override older laws all the time. That’d only be relevant at all if the existing law in question is the Constitution (either of the state or the nation). Second, as **Bricker** has pointed out, it’s quite possible for a law to be Constitutional and yet be a bad idea. Third, the question of whether this specific law is good or bad is not inseparably tied to whether abortion in general is good or bad: I, for one, am opposed to abortion (at least, abortions at the stage at which this law would be relevant), and I still think that this is a really stupid way to try to address the problem. ---
**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, 8:02pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/126 "2010-04-28T20:02:24Z")
> [@Bricker](#): > > And the arguments I cited earlier were informal legal arguments. What is an informal legal argument? There are only 4 hits on google, and none are informative. Formal legal argument, on the other hand, yields an ample bounty and some pretty good definitions. ---
**Author:** ![Mr.Excellent](https://avatars.discourse-cdn.com/v4/letter/m/f19dbf/32.png) [@Mr.Excellent](https://boards.straightdope.com/u/Mr.Excellent)\ **Post date:** [April 28, 2010, 8:02pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/127 "2010-04-28T20:02:38Z")
> [@Bricker](#): > > A statute is presumed to be valid if the classification drawn by it is “rationally related” to a “legitimate state interest.” United States Railroad Retirement Board v. Fritz, 449 U.S. 166 (1980). “[The rational-basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.” ibid, quoting Metropolis Theatre Co. v. City of Chicago. > > And it’s “…entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature . . . [the] legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications, Inc., 508 U.S. 307 (1993). Of couse, and I understand that the conceived reasons doesn’t have to be what the legislature was _actually_ thinking. (Just as well, for that way madness lies.) However, I’m wondering if “encourage ultrasounds” could even count as a rational basis for the liability shield law, given that another law _requires_ ultrasounds. And if not, can we think of any other rational basis for the law? ---
**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, 8:03pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/128 "2010-04-28T20:03:59Z")
> [@Bricker](#): > > In your view, why do we have both a “Great Debates” and an “In My Humble Opinion” forum? Objection! Relevance! ---
**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, 8:05pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/129 "2010-04-28T20:05:16Z")
> [@Bricker](#): > > OK. What we have here is a failure to agree on basic premises. You seem to suggest that the only substantive difference between IMHO and GD is the presence of politics or religion (or, presumably, any other offensive or unpleasant topics). I believe that the underlying expectations of each forum are different. In GD, one is expected to provide citation to authority - an unsupported opinion is not welcome; a gratuitous assertion may be equally gratuitously denied. In IMHO, on the other hand, opinions unsupported by evidence are solicited and encouraged, and there is no opprobrium for the poster who posts an opinion without factual support. That and GD discussions are long-running and there is far more back-and-forth. We actually argue about things. Arguing in IMHO gets it bounced down here. The substantive differences concern the length of discussion and the tolerance for opposing points of view. I hesitate to comment on the formal qualities of the arguments themselves. ---
**Author:** ![ShadowFacts](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/shadowfacts/32/2934_2.png) [@ShadowFacts](https://boards.straightdope.com/u/ShadowFacts)\ **Post date:** [April 28, 2010, 8:09pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/130 "2010-04-28T20:09:14Z")
> [@Oakminster](#): > > 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. > [@Bricker](#): > > 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. I don’t disagree with either of you about the relevance of legal arguments on this matter. As a non-lawyer, I am in fact interested to read them. But they are not the _only_ thing worth discussing here, as **Oakminster** clearly implied by disparaging the non-legal comments (“mean anti-abortion people, dumb, stupid, icky-poo”) in the post that to which I originally responded. Just because a law is passed somewhere doesn’t mean debate about the matter is settled. And just because a debate involves laws doesn’t mean that non-legal aspects are not interesting and/or relevant. I didn’t think that would be a controversial viewpoint, but this is GD, I guess 🆒 ---
**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, 8:15pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/131 "2010-04-28T20:15:38Z")
> [@Chronos](#): > > First of all, it’s completely irrelevant if it “violates existing law”, because laws override older laws all the time. That’d only be relevant at all if the existing law in question is the Constitution (either of the state or the nation). Second, as **Bricker** has pointed out, it’s quite possible for a law to be Constitutional and yet be a bad idea. Third, the question of whether this specific law is good or bad is not inseparably tied to whether abortion in general is good or bad: I, for one, am opposed to abortion (at least, abortions at the stage at which this law would be relevant), and I still think that this is a really stupid way to try to address the problem. The Casey case, which I have cited, is existing law. From a plaintiff’s point of view, she has the right to obtain an abortion without having to overcome an undue burden. The Casey court held that “informed consent” was not an undue burden, and thus allowed the applicable provision of Pennsylvania law to stand. The question in this thread is whether or not the ultrasound requirement poses an undue burden, and thus violates the Constitution as interpreted in Casey and other relevant caselaw. A potentially winning argument in an attempt to strike down the ultrasound law must convince the current SCOTUS that the law at issue here goes beyond requiring informed consent, which was allowed under Casey, and somehow poses an undue burden. Other cases applying the undue burden test may or may not lend support to Plaintiff’s cause. I’d like to see some of them cited and discussed. ---
**Author:** ![justrob](https://avatars.discourse-cdn.com/v4/letter/j/a9adbd/32.png) [@justrob](https://boards.straightdope.com/u/justrob)\ **Post date:** [April 28, 2010, 8:20pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/132 "2010-04-28T20:20:04Z")
Don’t the two laws seem to work against each other also? Law #1 Requires the patient to have informed consent. Law #2 Says the doctor doesn’t need to give the patient the information. ---
**Author:** ![Ionizer](https://avatars.discourse-cdn.com/v4/letter/i/5daacb/32.png) [@Ionizer](https://boards.straightdope.com/u/Ionizer)\ **Post date:** [April 28, 2010, 8:48pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/133 "2010-04-28T20:48:50Z")
Oklahoma resident here: After asking at least a dozen strangers in a grocery store today, not one of them was aware of the new law that is being discussed here. I got some strange looks when asking, but most of the people were seemingly somewhat shocked at what they learned from me. Some even called me a liar trying to make trouble and got kinda mad I would suggest such a thing happening, and I said they could call the Gov who did try to veto it (thx, Brad!). I live in a little po-dunk town and certainly did not get an accurate ‘survey’/population cross-section by any means. I’m saying this for those folks that think that most of ‘us’ support this - most do not even know it is happening, from what I can tell at the moment anyways. Ignorance is bliss, right?! I’m wondering if the licensing entities of physicians (AMA, DEA, and/or State agencies) will tolerate a physician possibly causing harm to a patient by intentionally not telling what would otherwise be mandated. That Hippocratic thing is not taken lightly, I hear. ---
**Author:** ![suranyi](https://avatars.discourse-cdn.com/v4/letter/s/e36b37/32.png) [@suranyi](https://boards.straightdope.com/u/suranyi)\ **Post date:** [April 28, 2010, 8:49pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/134 "2010-04-28T20:49:42Z")
> [@DianaG](#): > > Ultrasounds done before abortions are not generally transvaginal. I stand corrected. The reason I asked is because my wife has undergone extensive fertility treatments, eventually leading to a full term pregnancy, and in the course of that has had many transvaginal ultrasounds. For quite a few things they give the best view. In fact, it wasn’t until the fetus was a few months along that the regular ultrasound could see anything. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [April 28, 2010, 9:04pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/135 "2010-04-28T21:04:31Z")
> [@Der\_Trihs](#): > > Exactly. The anti-abortion movement is ultimately a hate movement against women; they see this as an opportunity to torment women while they are most vulnerable. > > Because tricking women into giving birth to defective or dead babies traumatizes the women, and women are all evil and deserve it. At least, that’s how these people see it. > > You can’t expect anything from these people, except the most monstrous behavior they think they can get away with. Behavior like this, for example. While I agree that it is horrible to legally protect doctors for lying to their patients I don’t think the pro-life movement is ultimately a hate movement against women. Isn’t it possible that some people think that fetuses are human? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [April 28, 2010, 9:12pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/136 "2010-04-28T21:12:22Z")
> [@marshmallow](#): > > So the idea is, like Darth Vader, these baby killers have a kernel of goodness in them which seeing their unborn on a fuzzy gray monitor will reawaken? Or something. I think the idea is that a lot of women cope with abortion by pretending that the child growing inside of them is not alive. I think its emotional coercion to require women to see the baby that they might be eliminating but that is probably the premise. I know a womn who had an abortion when she were young and now has several children and are better able to provide for those children because she was able to finish college and start a career. Its a tough issue, if it were anywhere near as simple as Der Trihs would have you believe, the debate would have been over before it started. ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [April 28, 2010, 9:16pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/137 "2010-04-28T21:16:47Z")
> [@gonzomax](#): > > It is not hard to understand. There are people outside your family who know better than you how you should live your life. If you get pregnant, it is none of your business if the child is defective. They will make the decision for you. They know so much better than you do. As a bonus ,you get to raise a kid you are not ready for, do not want, can not afford or has birth defects. You ever hear of adoption? ---
**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 28, 2010, 9:18pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/138 "2010-04-28T21:18:26Z")
> [@Oakminster](#): > > The Casey case, which I have cited, is existing law. From a plaintiff’s point of view, she has the right to obtain an abortion without having to overcome an undue burden. The Casey court held that “informed consent” was not an undue burden, and thus allowed the applicable provision of Pennsylvania law to stand. The question in this thread is whether or not the ultrasound requirement poses an undue burden, and thus violates the Constitution as interpreted in Casey and other relevant caselaw. > > A potentially winning argument in an attempt to strike down the ultrasound law must convince the current SCOTUS that the law at issue here goes beyond requiring informed consent, which was allowed under Casey, and somehow poses an undue burden. Other cases applying the undue burden test may or may not lend support to Plaintiff’s cause. I’d like to see some of them cited and discussed. Interesting post, **Oakminster** ; thank you for clarifying the issue of _Casey_, particularly as it pertains to “informed consent” and “undue burden.” In regard to the liability shield for not notifying the patient about prenatal findings, ISTM that this would tend to prevent a prospective parent from exercising informed consent when deciding to continue a pregnancy. Is this really a wise reason for the State to step between the physicians it licenses and accountability for their errors? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [April 28, 2010, 9:19pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/139 "2010-04-28T21:19:31Z")
> [@Chronos](#): > > Frankly, I don’t understand the purpose of the law in the first place. I’m guessing it’s supposed to be something like “Oh, if she just sees that that’s a little baby in there, then she’ll decide against having an abortion”. Except, I’ve seen ultrasounds, and they don’t look remotely like anything humanoid. Sure, a trained doctor or imaging technician can point to spots on the blob and say “There’s the head, there’s the arms and legs, and there’s the penis, congratulations it’s a boy”, but those of us without such training just need to take their word for it, because it all just looks like a blob. > > Now, if you want to try to provoke an emotional response in the pregnant woman, then you could show her photographs of a fetus at the same level of development as hers. In photographs, a fetus past a certain point really does look like a baby, and prompts the “Ooh, cute!” reaction in adults. That would make a certain sort of sense. But ultrasounds? I don’t see the point. Don’t things start6 to get identifiable in the second trimester? ---
**Author:** ![Damuri\_Ajashi](https://avatars.discourse-cdn.com/v4/letter/d/898d66/32.png) [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)\ **Post date:** [April 28, 2010, 9:25pm UTC](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572/140 "2010-04-28T21:25:44Z")
> [@tumbleddown](#): > > Let’s call the ultrasound requirement what it is: Oklahoma state law requires any woman requesting an abortion to be sodomized. So now every woman has a probe struck up her butt? I don’t like the probe ultrasound because if you need a probe its probably not developed enough for ultrasound pictures to change your mind. Having to go thorugh the probe ultrasound seems like an undue burden. [Previous page](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572.md?page=6) [Next page](https://boards.straightdope.com/t/oklahoma-law-doctors-cant-be-sued-for-hiding-birth-defects-from-parents/537572.md?page=8)