Health Law Daily Maine’s Wrongful Birth Statute not unconstitutional under either state or federal constitutions
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Monday, August 28, 2017

Maine’s Wrongful Birth Statute not unconstitutional under either state or federal constitutions

By Jeffrey H. Brochin, J.D.

Maine’s Wrongful Birth Statute which limited damages to the cost of a failed sterilization procedure resulting in the birth of a healthy child and the award of damages for the hospital and medical expenses incurred for sterilization procedures and pregnancy, was not unconstitutional under either the United States Constitution nor under the Constitution of the State of Maine, a federal district court has ruled. Because the Maine Law Court had ruled that the patient had no underlying cause of action, her federal constitutional right of access to the courts was not violated. The legislature’s action in determining the scope of any cause of action for wrongful birth was well within the legislative branch’s powers and did not violate Maine’s constitutional separation of powers provision (Doherty v. Merck & Co., Inc., August 24, 2017, Hornby, D.).

Background. A woman in Maine underwent a procedure at a community health center for the implant of a contraceptive device which failed and led to her unplanned pregnancy and delivery of a healthy child. She sued the United States on the basis that it was responsible for her doctor’s negligence, and Merck & Co, Inc. for what she claimed was a defective implant device. The manufacturer and the U.S. moved to dismiss her lawsuit based on Maine’s Wrongful Birth Statute. The federal court judge had previously certified questions about the statute’s interpretation to the Maine Law Court, but they did not address the constitutionality of the statute because the judge had not explicitly certified the question of state or federal constitutionality. The federal judge now found the statute to be constitutional under both the state and federal constitutions.

Right to petition the courts. The patient asserted that Maine’s Wrongful Birth Statute unconstitutionally deprived her of a remedy for the injury that the failed contraceptive implant caused. The federal court noted that Maine’s Law Court has consistently held that Maine’s Open Courts provision means that the courts must be accessible to all persons alike without discrimination, and afford a speedy remedy for every wrong recognized by law as remediable in a court. Similarly, the U.S. Supreme court has recognized that the constitutional right of access to courts rests on the recognition that the right is ancillary to the underlying claim, without which a person cannot have suffered injury by being shut out of court.

While there is a constitutional right to court access, there is no complementary constitutional right to receive or be eligible for a particular form of relief: there can be no constitutional claim regarding denial of court access unless the patient had a viable underlying cause of action. Because the Maine Law Court had ruled that the patient had no underlying cause of action under the statute, her constitutional right of access to the courts was not violated.

Other constitutional issues. The court further found that because the Maine Law Court had determined that the Wrongful Birth Statute foreclosed her right to recover, she also was without a federal constitutional right to a jury trial on her claims. As concerns her separation of powers argument, the court found that the federal cases she relied upon were of no avail because she was challenging state legislation and not congressional legislation. The court found that state legislature’s action in determining the scope of any cause of action for wrongful birth was well within the legislative branch’s power, and did not violate the Maine Constitution’s separation-of-powers provision.

Last, the patient cited the Equal Protection Clauses under both state and U.S. constitutions in arguing that the statute involved gender discrimination because it was gender specific and not gender neutral by not affecting men as it affected women. However, the court found the statute to be gender neutral on its face, involving no suspect classification, and the court specifically referenced the language of the statute which read that "a person may maintain a claim for relief based on a failed sterilization procedure resulting in the birth of a healthy child and receive an award of damages for the hospital and medical expenses incurred for the sterilization procedures and pregnancy," as being gender neutral. The statute applied to sterilization procedures of anyone, regardless of gender, and to the hospital and medical expenses (including those for pregnancy) that may be incurred and recovered by either the pregnant person or, where one is present, a partner, or both.

The court concluded that Maine’s Wrongful Birth Statute did not violate the Maine or United States Constitutions, and they granted the manufacturer’s and the U.S.’s motions to dismiss.

The case is No. 1:15-cv-129-DBH.

Attorneys: Laura H. White (Bergen & Parkinson LLC) for Kayla Doherty. Lynn A. Combs (Reed Smith LLP) for Merck & Co Inc.

Companies: Merck & Co Inc.

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