892 F.3d 493
1st Cir.2018Background
- Doherty received a contraceptive implant (Implanon/Nexplanon) at a federally-funded community health center; she later became pregnant and the implant could not be located.
- She sued Merck for product liability and the United States under the FTCA for medical negligence and lack of informed consent, alleging physical, economic, and emotional harms from the unintended pregnancy and child-rearing.
- Defendants moved to dismiss relying on Maine’s Wrongful Birth Statute, Me. Rev. Stat. tit. 24 § 2931, which bars recovery for the birth and rearing of a healthy child but excepts failed sterilizations for certain pregnancy-related damages.
- The Maine Law Court held the statute unambiguously bars the category of claims at issue, found the implant was not a sterilization within the statute’s exception, and left constitutional challenges to the federal court.
- The district court dismissed Doherty’s claims, rejecting her federal and state constitutional challenges; the First Circuit reviews only constitutional issues de novo on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Maine’s open-courts guarantee prohibits the statute from abolishing common-law claims | Open-courts clause prevents legislature from eliminating a cause of action recognized at common law | Legislature may limit or abolish common-law causes if it clearly manifests intent; statute valid | Statute does not violate Maine open-courts guarantee; legislature may define remediable injuries |
| Whether the jury-trial right is violated | Statute denies access to civil suit and thus to jury trial | No right to jury on a non-existent cause of action | No violation; right to jury attaches only to cognizable civil suits |
| Whether First Amendment petition right is violated | Statute blocks access to courts and thus petition for redress | Right to petition is ancillary to an underlying claim; none exists here | No violation; no underlying claim, so no First Amendment right to sue |
| Whether statute infringes privacy or fails rational-basis review | Statute places moral judgment affecting reproductive choice and thus implicates privacy; not rationally related to legitimate interests | Statute is rationally related to legitimate state interests (public policy, cost-saving, malpractice insurance) | Applied rational-basis review; statute upheld as rationally related to legitimate objectives |
Key Cases Cited
- Calderón-Ortiz v. LaBoy-Alvarado, 300 F.3d 60 (1st Cir.) (standards for assuming truth of complaint allegations on motion to dismiss)
- Macomber v. Dillman, 505 A.2d 810 (Me. 1986) (Maine Law Court held birth of a healthy child is not a legally cognizable injury at common law)
- Gaudette v. Davis, 160 A.3d 1190 (Me. 2017) (Legislature may limit or abolish common-law tort claims)
- City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (rational-basis review rejects justifications based on private bias)
- Maher v. Roe, 432 U.S. 464 (1977) (rational-basis review applied to statutes affecting reproductive decisions)
- Harris v. McRae, 448 U.S. 297 (1980) (rational-basis review upholding statute that encouraged alternatives to abortion)
- Eulitt ex rel. Eulitt v. Maine Dep’t of Educ., 386 F.3d 344 (1st Cir.) (burden on plaintiff to show no conceivable rational basis)
- Zannino v. United States, 895 F.2d 1 (1st Cir.) (issues raised perfunctorily are waived)