- The Washington Times - Sunday, October 7, 2001

A novel ruling by Kansas' highest court that physicians have a duty to the fetus in a welcomed pregnancy startled abortion opponents, who are studying the decision's potential for possible use in challenging late-term procedures.
"We hold, as a matter of law, that a physician who has a doctor-patient relationship with a pregnant woman who intends to carry her fetus to term and deliver a healthy baby also has a doctor-patient relationship with the fetus," said the 7-0 decision handed down Sept. 21 by the Kansas Supreme Court.
The ruling, disposing of just one aspect of an otherwise conventional medical-malpractice case, called the issue one of "first impression," meaning it was the first time any top state court decided it.
In 1979, the U.S. Supreme Court overturned a Pennsylvania law requiring physicians to "exercise the same care to preserve the fetus's life and health as would be required in the case of a fetus intended to be born alive." That 6-3 ruling said Pennsylvania's statute was too ambiguous in relying on "sufficient reason to believe that the fetus may be viable." Advances in medical technology over those decades has sharpened the ability to make an objective prognosis.
Joan Hawkins, director of Kansans for Life, was reviewing the ruling, but had no comment. The top lawyer for the National Right to Life Committee (NRLC) was skeptical about broad application, at least beyond Kansas, because abortion is a "hyperprotected" right.
"This decision just bears generally on the oddity of abortion law, and how out of step abortion law is with medical law. What is strange is abortion law, which treats the unborn as if it's not a real person," said NRLC general counsel Jim Bopp Jr.
"The recognition that it is so has caused the pro-abortion side to become involved in all sorts of cases criminal prosecutions against third parties, because they don't want a child to be recognized as a victim," Mr. Bopp said.
Lawyers directly involved in the case were preoccupied with separate issues of financial liability and damages and did not raise questions under federal abortion case law or the U.S. Constitution that would have allowed it to be appealed to federal courts. The Supreme Court does not review such rulings by top state courts.
Federal review would be likely if another court decided, for instance, that "equal protection" was not given if a duty to a viable fetus was confined only to cases in which the mother wanted to deliver a child.
"Whether or not it has those type of implications remains to be seen," said Christopher A. McElgunn of Wichita, attorney for obstetrician Scott E. Moser, whom a jury held liable for 90 percent of its $800,000 award to Audra Nold, 10. She was born positive for hepatitis B, which can be avoided by a gamma-globulin infusion.
"I don't believe this case alone is going to create a whole bunch of new civil rights," said Mr. McElgunn, who emphasized its limitation to prenatal care intended to produce a healthy live birth. "We really haven't sat down and had any real discussions on this point. It's really new."
"That ought to throw total confusion in abortion cases, at least in Kansas. How can you exercise your duty to a viable fetus you are about to abort?" said Arden J. Bradshaw, also of Wichita, who called the decision fascinating even though it didn't give his client the broader decision he sought for Audra.
"I'm glad somebody noticed. This was probably one of the first cases in the United States that reached an appellate court in which the physician's duty to inform arose in a context other than battery by a physician who accidentally harms a fetus," Mr. Bradshaw said.

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