Analysis: HB 2354 Would Grant Immunity to Doctors Who Botch Abortions and Harm Women: A “Get Out of Jail Free Card” For Criminally-Liable Abortionists
Posted by Mary-Louise Kurey (March 22, 2009 at 11:59 pm)
There have been several requests for more detailed analysis of key provisions of the Illinois FOCA bill, HB 2354. The Research Team prepared the following summary of the civil and criminal immunity provisions in Section 25.
SUMMARY: Section 25 would establish limited civil and criminal immunity for doctors and other medical personnel that harm women in abortions. The civil immunity provision would increase the legal burden on any woman harmed in a botched abortion who seeks to recover damages in a private suit. The criminal immunity provision would grant a “Get Out of Jail Free Card” to medical professionals who otherwise may be criminally-liable for egregious conduct, and effectively confer greater protection from criminal liability for abortionists than for “Good Samaritan” physicians who provide care in free clinics and emergency situations. A detailed overview of the context and provisions follow below.
1. Cases Involving Botched Abortions. It happens all too often. A doctor botches an abortion and harms a woman. One recent case involved 18 year old Sycloria Williams in Florida. The young woman’s difficult tale has been summarized as follows:
Williams, then 18, discovered while being treated for a fall that she was 23 weeks pregnant. She went to a clinic to get an abortion on the morning of July 20, 2006, after receiving medication and instructions the previous day. [The doctor, Pierre Jean-Jacques] Renelique was not at the clinic, however, and Williams was told to wait for him. She was given two pills and told they would make her ill. When she complained of feeling ill, clinic staff members gave her a robe and told her to lie down in a patient room, the suit says. Renelique was still not present when Williams “felt a large pain” and delivered a baby girl, according to the suit. “The staff began screaming and pandemonium ensued. Sycloria watched in horror and shock as her baby writhed with her chest rising and falling as she breathed.” A clinic co-owner entered the room and used a pair of shears to cut the baby’s umbilical cord, the suit said. She “then scooped up the baby and placed the live baby, placenta and afterbirth in a red plastic biohazard bag, which she sealed, and then threw bag and the baby in a trash can.” Staff at the clinic did not call 911 or seek medical assistance for Williams or the baby, the suit said. Renelique arrived at the clinic about an hour later and gave Williams a shot to put her to sleep. “She awoke after the procedure and was sent home still in complete shock,” the suit said. See http://www.cnn.com/2009/US/02/06/florida.abortion/.
2. HB 2354 Establishes a Liability Shield for Doctors That Botch Abortions. Section 25 would help immunize abortion doctors from liability for the harm they cause to women through these kinds of botched abortion procedures. It shields an abortion practitioner from responsibility for their actions by providing that such person: “is not liable for civil damages or subject to criminal penalty relating to a pregnancy termination performed in good faith, in accordance with the attending medical professional’s good faith clinical judgment and accepted standards of medical practice.” This subjective and vague standard would excuse abortion practitioners from the standard of care generally applied to other medical professionals, who must use the “same degree of knowledge, skill, and ability as an ordinarily careful professional would exercise under similar circumstances.” See Jones v. Chicago HMO Ltd. of Illinois, 191 Ill.2d 278, 730 N.E.2d 1119 (Ill. 2000).
3. HB 2354 Provides a “Get Out of Jail Free” Card To Criminally-Liable Abortionists. Section 25 would also help immunize an abortion doctor from liability for criminal acts. This is more generous to abortion doctors than what is offered to “Good Samaritan” medical professionals under Illinois law who work in free clinics and provide emergency care. See 225 ILCS 60/30 and 225 ILCS 60/31. Good Samaritan medical professionals only obtain protection from civil liability (suits by private persons) whereas HB 2354 would afford abortion doctors a shield from criminal liability.
4. HB 2354: An Abortion-Industry Special Interest Bill. There is no legitimate reason why abortionists should be treated more favorably than other medical professionals when it comes to issues of liability. If they harm a woman, the woman should have the right to recover damages. Why should the State try to block a woman from recovering damages when she is harmed by an abortionist? Similarly, why should prosecutors be prevented from pursuing cases against abortionists who engage in criminally reckless activities? The liability shields for civilly and criminally-liable abortionists are yet another obvious give-away that HB 2354 is an abortion-industry special interests bill.
You wrote: “[Illinois FOCA] shields an abortion practitioner from responsibility for their actions by providing that such person: “is not liable for civil damages or subject to criminal penalty relating to a pregnancy termination performed in good faith, in accordance with the attending medical professional’s good faith clinical judgment and accepted standards of medical practice.” This subjective and vague standard would excuse abortion practitioners from the standard of care generally applied to other medical professionals, who must use the “same degree of knowledge, skill, and ability as an ordinarily careful professional would exercise under similar circumstances.””
What’s the difference? “accepted standards of medical practice” means neither more nor less than “same degree of knowledge, skill, and ability as an ordinarily careful professional would exercise”.
Nor will it “immunize an abortion doctor from liability for criminal acts”. Again, the doc must follow “accepted standards of medical practice” which includes, no crime.
Of course the doc should not be responsible for every patient who dies unexpectedly under his/her care. People die unexpectedly all the time. If you have a heart attack and pop off during a play, should the theatre be liable? How about if you’re in a cab, should your children be able to sue the driver?
You wrote: “There is no legitimate reason why abortionists should be treated more favorably than other medical professionals when it comes to issues of liability.” I agree. We should extend the same protections–no penalty unless you violate “accepted standards of medical practice”–to all health-care workers. This bill is a good start.
March 23rd, 2009 at 5:05 am
SoMG, it’s the difference between “He thought it was a good idea at the time” and “it’s standard medical practice in the community.” Which is a HUGE difference.
March 23rd, 2009 at 7:29 am
It appears that there are two possible interpretations of Section 25: (1) it would apply the *same* standard to abortion practitioners as would apply to other medical professionals, or (2) it would apply a *more favorable* standard to abortion practitioners than would otherwise apply under existing law.
If the better interpretation is Option (1), then everyone should be able to agree that Section 25 should be deleted from the bill because it doesn’t do anything. In fact, it would cause harm because parties would spend $ to litigate over what it means, only to find later that it is the same standard that applied before the statute was adopted.
If the better interpretation is Option (2), then the right public policy decision is to vote “no” on HB 2354. Abortion practitioners should not be treated any differently than other doctors, and particularly should not be treated more favorably than doctors that provide care in free clinics or on an emergency basis. A woman who is injured in a botched abortion *should* be able to recover damages from the doctor who negligently injured her. Similarly, a public prosecutor should also be able to pursue an action against an abortionist who is reckless or criminally negligent in harming one or more women.
The botton line is that I don’t think this is truly controversial. It’s just another sign that HB 2354 is an abortion-industry special interests bill.
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May 12th, 2010 at 1:55 pm