Abortion and Physicians' Liability

October 11, 1992

Opponents of Question 6, the abortion law on the November ballot, say it shields a physician from lawsuits rising from "negligent" decisions to perform an abortion. They also charge the law would allow abortions to be performed by any type of physician, even a psychiatrist, an allergist or an ophthalmologist. These charges distort the law -- and the facts.

The first charge relates in part to the law's provision for bypassing the requirement to notify the parents of a minor who seeks an abortion. What's puzzling about this criticism is that the immunity provision is not new. It was also included in Maryland's earlier attempt to establish a parental notification law -- a law that is currently unenforceable because it does not contain a bypass procedure that meets constitutional standards.

This immunity provision does not protect a physician from charges stemming from a botched abortion, but only from lawsuits arising from the decision to notify a girl's parents or to trigger the bypass procedure. Question 6 does not create a new immunity for physicians; it does, however, give Maryland an enforceable parental notification law which the state does not now have.

A second issue relates to charges the law would allow any kind of doctor -- even an allergist! or a psychiatrist! -- to perform an abortion. Wrong. Question 6 exempts physicians from civil liability or a criminal penalty for a decision to perform an abortion, as long as that decision is made "in good faith and in the physician's best medical judgment in accordance with accepted standards of medical practice." Those standards are commonly used as the test for negligence and liability.

When a physician obtains a license to practice in Maryland, he or she is free to practice any kind of medicine. There is no prohibition in the state's licensing law that would prevent a psychiatrist from doing orthopedic surgery. But psychiatrists do not perform knee surgery for one simple reason -- doing so would put them at overwhelming risk of malpractice charges and no company would insure them. For the same reason, physicians not trained in abortions don't perform abortions -- they don't now, nor would they under the new law. This charge simply won't wash. The law deserves the support of Marylanders. Vote "FOR" on Question 6.

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