That’s what I get for trying to take shortcuts.
Do I, or do I not, have a constitutionally protected right to enter into legally enforceable contracts?
Do I, or do I not, have a constitutional right to petition the courts for redress when I have been defrauded, in any legally enforceable contract?
Are implied contracts considered legally enforceable?
If the answers to these questions are “no,” then I am way out of my depth.
Not an unfettered one, no. You could not enter into a contract with me to load sacks on your truck for $4.00 per hour, for example, because the state has decided that working for $4.00 per hour is against public policy.
Interesting historical sidenote: back in the day, 1905, the Supreme Court actually decided this question the other way: in Lochner v. New York, the Court said that New York could not limit the number of hours bakers had to work, ciring the Due Process Clause and how it protected the “right to contract.”
Thus proving that conservatives are perfectly capable of claiming the Constitution says something in the penumbras and emanations that it doesn’t say in the text.
However, that golden age ended with 1937’s West Coast Hotel Co. v. Parrish, which reversed Lochner and held that a state’s right to set a minimum wage trumped the individual’s due process “right to contract.”
So… you have a right to contract, but it is subject to the state’s definitions of public policy and cannot violate that public policy.
Yes, in the sense that the law must provide you both procedural and substantive due process. The law can impair that right in any number of ways – for example, making you exhaust administrative remedies before going to court. And rememebr that your contract, to be “legallyenforceable,” cannot flout public policy of a state, defined by that state’s laws.
In some cases. This is a question that is highly dependent on the particular facts.
Hope this helped!
I’m not a med mal guy either, but on it’s face, the law seems to only remove the torts of wrongful birth and wrongful life that are based on a claim that a wrongful act or omission contributed to the mother’s not having an abortion. It explicitly does not remove liability for acts or omissions that could have prevented maternal injury or death, or that could have improved the health of the child at or during birth.–ie, negligent pre-natal care still appears to be actionable.
I think, in theory, a breach of contract action could lie…but doubt many doctors planning to use the malpractice shield would sign such a contract. In the absence of a written contract…hell…I dunno.
I suspect most existing contracts are going to be mostly a promise to pay for services rendered, with no explicit guarantee that said services will be of any particular level of quality. Does the statute define by implication the standard of care/quality of service a patient has a right to expect in Oklahoma?
Also, contract damages may not be adequate to compensate plaintiff…different measures apply for different scenarios. I vaguely recall something about an expectancy measure vs a reliance measure vs a restitution measure. A written contract might include a liquidated damages clause, limiting recovery to the amount paid for the treatment. Is that unconscionable? Are the contracts in question contracts of adhesion? Are they negotiated at arms length?
Like I said back on page 1–whole lotta employment for lawyers in Oklahoma over this stuff.
This is why I stuck to criminal law.
Of course they are comparable. In both situations someone who certified by the state as a competent and ethical professional is using deception to prevent someone from exercising their rights.
You say a poll worker has a legal obligation to provide a voter with an authentic ballot. Why you think that is material objection to my analogy beats the hell out of me, but why don’t we try some more scenarios out. Let’s say a poll worker lies and tells voters that election day was the previous week so that they don’t show up to vote on the right day. Or let’s say that a poll worker deceives voters into thinking their ballots are not anonymous so they’ll feel intimidated into going with the more popular choice. Or let’s say the polling worker makes registered Republicans que up for hours in the rain while they let everyone else stay warm and dry. Stop me when any of this strikes you as unconstitutional.
Voting is a right. So is abortion. While doctors are not obligated to provide an abortion, they can not use their position as a state-backed authority, with legal impunity, to prevent someone from making a federally-protected medical decision of their own free choosing. Because this infringes on a woman’s rights. It is no different than an state official abusing their authority to prevent someone from voting when that person is well within their rights to vote.
As I already pointed out, if we take this shitty law to its logical conclusion, doctors can get away with misleading patients into thinking they aren’t pregnant, simply so these women can’t have abortions. Preventing patients from sueing these doctors on the grounds that their deception prevented them from getting a medical procedure that they are entitled to get is incompatible with case precedence (Roe v Wade) that establishes abortion as a right. If it’s not permissable to make a claim that your rights have been violated in a court of law, then what the hell can you claim? It suggests that rights mean nothing.
The more I think about this, the more I’m convinced that this is not just ethically indefensible but also legally.
That’s a good point. I do think that parents need to be informed of all options when carrying a fetus with severe/profound birth defects that have a high chance of miscarriage/stillbirth. I ALSO think that prolifers need to realize that in cases where the baby’s died in utereo, and a pregnancy termination is needed, it’s not about killing the baby. It is more about turning life support off. Not all birth defects are high functioning. There are many where the kid is a vegetable or can only smile or whatever.
I think a better law in the area of prenatal defect dx, would be to give the parents as much information as possible out there on ALL options, and the best info they have on the defect.
There is federal law covering PHI (Personal Health Information) contained in HIPPA that seems like it may conflict with this state disclosure law. Essentially, I believe anyone with your PHI (medical information) is obligated to disclose them to you or a designee within a certain amount of time after your request. There are exceptions, but I’m not sure if those exceptions could be used to excuse the OK statute.
I believe this might be the relevant section of HIPPA: Access of individuals to protected health information.