Analysis Law and Policy

New Model Laws Would Let Third Parties Sue for Emotional Damages From Abortions

Jessica Mason Pieklo

Americans United for Life has offered model legislation designed to "expand enforcement" of existing abortion restrictions.

In a preview of the abortion battles coming in 2014, anti-choice advocacy group Americans United for Life (AUL) has announced it is pushing model legislation that would allow third parties to sue abortion clinics to enforce abortion restrictions.

The new enforcement proposals are part of AUL’s next wave of model anti-choice legislation for the states. They fall into three general categories: those that provide general civil liability to clinic operators, their employees, and state officials; those that provide general criminal liability; and expanded administrative complaints that target clinic and provider licenses. One sample statute provides that any person in violation of any abortion-related law be civilly liable to the person or persons adversely affected. The AUL model does not define “person,” so states would be free to define who could sue providers as broadly as they see fit to include a patient’s extended family, or even those with no relation to the patient. This provision would allow a court to award damages, including emotional distress damages and attorneys’ fees. Another sample statute provides for broad criminal liability for anyone who “knowingly” or “recklessly” violates any abortion-related rule or statute. Both the model criminal liability and civil liability statutes exempt pregnant women, which means as proposed they are not intended to be used against patients seeking abortions.

The proposals can be enacted in whole, or in part, and are described by AUL President and CEO Charmaine Yoest as the “new frontier” in AUL’s campaign to regulate abortion out of existence at the state level.

In addition to model statutory language, the AUL “enforcement module” also provides sample complaint forms for initiating licensing proceedings. These simple forms would be completed by anyone wishing to trigger state agency action to suspend or revoke a clinic or provider’s professional license.

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Taken as a whole, the “enforcement module” represents the logical, and dangerous, next stop in the anti-choice legal assault on reproductive rights. The wave of abortion-related restrictions at the state level from 2010 has left a complex web of statutes and administrative rules that makes accessing and providing abortion care difficult and expensive. Add to that the cost that comes along with greatly expanding the possibility of civil, criminal, and administrative liability for simply doing business, and the goal is clear: to make it too expensive to provide or access abortion care.

It also perfectly reflects the anti-choice movement’s insistence that a pregnant body is a public commodity by suggesting that literally anyone has a legal interest in the outcome of any pregnancy. This sentiment has always been there, simmering underneath the rhetoric of “patient safety” and “women’s protection” used to advance informed consent restrictions and targeted regulation of abortion providers (TRAP) laws, but this represents a new, more brazen approach to regulating pregnancies. And while it is reassuring that even AUL doesn’t go so far as to suggest these new model enforcement laws be written to apply to pregnant women, when placed next to the idea that now third parties would have legal rights related to a pregnancy, it simply reinforces their belief that women’s rights are always relational to their reproductive status.

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