Hickman v. Group Health Plan, Inc.

• Decision Date: 24 October 1986
• Docket Number: No. C2-85-2013,C2-85-2013
• Citation: 396 N.W.2d 10
• Parties: Simin Y. HICKMAN and Chris A. Hickman, individually and as parents and natural guardians of Jessica Hickman, Respondents, v. GROUP HEALTH PLAN, INC., et al., Appellants, State of Minnesota, Intervenor.
• Court: Minnesota Supreme Court

Page 10

396 N.W.2d 10

55 USLW 2240

Simin Y. HICKMAN and Chris A. Hickman, individually and as parents and natural guardians of Jessica Hickman Respondents, v. GROUP HEALTH PLAN, INC., et al., Appellants State of Minnesota, Intervenor.

No. C2-85-2013.

Supreme Court of Minnesota.

Oct. 24, 1986.

Syllabus by the Court

I. Minn.Stat. Sec. 145.424, subd. 2 (1984) does not involve state action such as would make applicable the due process and equal protection clauses of the Fourteenth Amendment.

II. Minn.Stat. Sec. 145.424, subd. 2 (1984) does not violate constitutional due process.

III. Minn.Stat. Sec. 145.424 (1984) does not violate constitutional equal protection.

IV. Article 1, section 8 of the Minnesota Constitution only assures remedies for rights that vested at common law.

Terence O'Loughlin, Richard J. Thomas, Audrey A. Zibelman, St. Paul, for appellants.

Ann L. Russell, Sp. Asst. Atty. Gen., St. Paul, for intervenor State.

Terry L. Wade, David McKenna, St. Paul, for respondents.

Joseph T. O'Neill, Christine L. Meuers, Michelle D. McQuarrie, St. Paul, for Minnesota Conference of Catholic Health Facilities & Minnesota Catholic Conference.

J. Stuart Showalter, Brian L. Andrew, St. Louis, Mo., for Catholic Health Assoc. of U.S. D. Kevin Ikenberry, Manassas, Va., for Rutherford Institute.

Maura K. Quinlan, Chicago, Ill., for Americans United for Life.

Walter M. Weber, Milwaukee, Wis., for Catholic League for Religious & Civil Rights.

James Bopp, Jr., Kristin S. Miles, Terre Haute, Ind., for Nat. Right to Life Committee.

Heard, considered, and decided by the court en banc.

YETKA, Justice.

This case comes to us as a certified question from the Hennepin County District Court. The issue to be determined is the constitutionality of Minnesota's wrongful birth statute, Minn.Stat. Sec. 145.424, subd. 2 (1984). The district court, in ruling on cross motions for partial summary judgment, struck down the wrongful birth statute as unconstitutional under Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Noting the significance of this question, however, pursuant to Minn.R.Civ.App.P. 103.03(h), the district court certified it to us as important and doubtful.

The question posed by the district court is whether Minn.Stat. Sec. 145.424 is constitutional under the United States and Minnesota Constitutions. We answer the certified question by upholding the statute's constitutionality and reversing the district court. ¹

I.

On January 28, 1984, Simin Hickman gave birth to her first child, Jessica. Jessica was born with Down's syndrome, a genetic disease also known as mongolism. At the time Simin became pregnant, she was 34 years old. Simin's obstetrician, Dr. Leslie Sharpe, had cared for her throughout her pregnancy. Because of her age, Simin's chances of bearing a genetically abnormal child were significantly increased. The risk of a 35-year-old woman bearing a Down's syndrome child is said by medical experts to be 1 in 350. By contrast, the risk of a woman in her 20's bearing a Down's syndrome child is between 1 in 1,000 to 1 in 2,000.

The parties dispute whether Dr. Sharpe ever offered to test Simin's fetus for Down's syndrome. Simin alleges that neither Dr. Sharpe nor Group Health offered her the option of testing for Down's syndrome. She also asserts that, when she independently learned of such testing and requested it, Dr. Sharpe advised her such testing was not necessary in her case. Dr. Sharpe, however, denies these claims. He alleges that he offered such testing to Simin after explaining the risks of Down's syndrome and certain risks involved in the testing itself, but that she declined such testing.

The typical procedure used to test for Down's syndrome is an amniocentesis. The procedure involves inserting a large needle into the mother's womb and withdrawing some amniotic fluid. The fluid is then tested to reveal the presence of Down's syndrome. The procedure, however, does involve some risk of injury. The chances of fetal death due to amniocentesis are between 1 in 100 and 1 in 200. Also, amniocentesis typically cannot be performed until the 16th week of pregnancy because insufficient amniotic fluid exists before that time. The testing for Down's syndrome takes approximately 4 weeks after the fluid is withdrawn.

The Hickmans brought the present suit against Dr. Sharpe and Group Health after Jessica's birth. They assert that, had they known of Jessica's condition as a fetus, they would have chosen abortion. They alleged several causes of action on behalf of themselves individually based on negligence, misrepresentation, breach of a fiduciary duty, and failure to inform. They also asserted a cause of action on behalf of Jessica based on negligence. Dr. Sharpe and Group Health specifically denied the allegations and raised as a defense the statutory prohibitions against wrongful birth and wrongful life actions found in Minn.Stat. Sec. 145.424, subds. 1, 2 (1984).

The Hickmans moved for partial summary judgment. They argued that subdivisions 1 and 2 of section 145.424: (1) unconstitutionally restricted Simin's right to an abortion under Roe v. Wade, (2) violated Simin's equal protection rights under both the United States and Minnesota Constitutions, and (3) violated Simin's rights under article 1, section 8 of the Minnesota Constitution, guaranteeing a remedy for every wrong. Dr. Sharpe and Group Health also moved for partial summary judgment, raising the statutory prohibitions in Minn.Stat. Sec. 145.424, subds. 1, 2 as a bar to the Hickmans' action. For a proper understanding of the issues raised, we deem it convenient to set out in full section 145.424 of the statute in question.

145.424 PROHIBITION OF TORT ACTIONS.

Subdivision 1. Wrongful life action prohibited. No person shall maintain a cause of action or receive an award of damages on behalf of himself based on the claim that but for the negligent conduct of another, he would have been aborted.

Subd. 2. Wrongful birth action prohibited. No person shall maintain a cause of action or receive an award of damages on the claim that but for the negligent conduct of another, a child would have been aborted.

Subd. 3. Failure or refusal to prevent a live birth. Nothing in this section shall be construed to preclude a cause of action for intentional or negligent malpractice or any other action arising in tort based on the failure of a contraceptive method or sterilization procedure or on a claim that, but for the negligent conduct of another, tests or treatment would have been provided or would have been provided properly which would have made possible the prevention, cure, or amelioration of any disease, defect, deficiency, or handicap; provided, however, that abortion shall not have been deemed to prevent, cure, or ameliorate any disease, defect, deficiency, or handicap. The failure or refusal of any person to perform or have an abortion shall not be a defense in any action, nor shall that failure or refusal be considered in awarding damages or in imposing a penalty in any action.

Minn.Stat. Sec. 145.424 (1984).

The district court granted the Hickmans' motion with respect to the wrongful birth statute in subdivision 2, finding it unconstitutional under Roe. ² The court reasoned that Roe and the cases following it established more than just a woman's right to an abortion; it established the broader right to decide whether to terminate her pregnancy within the context of the doctor-patient relationship. Minn.Stat. Sec. 145.424, subd. 2 unconstitutionally interfered with this right because it allowed a doctor to withhold information that might have helped her form a decision on abortion. The doctor could negligently withhold such information because subdivision 2 prohibited a patient from suing her doctor for wrongful birth based upon such negligence. By allowing significant information to be withheld regarding possible problems with a pregnancy, subdivision 2 impeded Simin's ability to make an informed decision concerning abortion. Therefore, subdivision 2 was, under Roe, held to burden significantly a woman's right to an abortion and, because appellants demonstrated no compelling state interest, the court struck down subdivision 2 as unconstitutional.

II.

Before addressing the Hickmans' constitutional challenges to subdivision 2, we find it helpful to discuss the legal basis of the wrongful birth cause of action. At common law, no cause of action existed for either wrongful birth or wrongful death. See, e.g., Baker v. Bolton, 170 Eng.Rep. 1033 (N.P.1808) (denying recovery for wrongful death); Prosser and Keeton on the Law of Torts, Secs. 55, 125A (W. Keeton, D. Dobbs, R. Keeton & D. Owen 5th ed. (1984)). Instead of originating in the courts, wrongful death suits were first permitted by the passage of Lord Campbell's Act in the mid-nineteenth century. Lord Campbell's Act (fatal accidents act), 1846, 9 & 10 Vict., ch. 93. Wrongful death actions in Minnesota were also established by statute. 1858 Minn.Pub.St. ch. 68, Sec. 3. Like wrongful death, wrongful birth presents a myriad of public policy problems, including difficulty in ascertaining damages, increased litigation, and distinguishing between legislative and judicial roles. ³ Annot., 83 A.L.R.3d 15 (1978 & Supp.1986). Because of these problems and the fact that no such action exists at common law, we consider the establishment of wrongful birth or wrongful life suits to be best within the exclusive jurisdiction of the legislature. In Minn.Stat. Sec. 145.424, the legislature has made its intent clear: no wrongful birth or wrongful life suits are to be permitted. The legislature has now spoken on the subject and, barring constitutional violations, that should end the matter.

Respondents argue that section 145.424, subdivision 2 is unconstitutional under Roe v. Wade, the Fourteenth Amendment to the United States Constitution, and article 1, section 8 of the Minnesota...