Federal judge dismisses faulty birth control suit against Merck

A Maine federal judge tossed out a woman’s lawsuit against Merck (NYSE:MRK), after she claimed that the company’s Nexplanon birth control implant allegedly failed to keep her from becoming pregnant.

Kayla Doherty filed the suit in April 2015, seeking damages related to the costs of raising a child as a single mother and costs related to her pregnancy. But Merck pointed to Maine’s Wrongful Birth Statute, which blocks damages arising from the birth of a healthy child.

The statute does make an exception for damages relating to pregnancy costs following a failed sterilization, but no exception is made for faulty birth control.

Doherty argued that the statute was unconstitutional, saying that it blocked her access to the courts and to a trial by jury, as well as violating her right to due process.

U.S. District Judge Brock Hornby, after contacting the state’s Supreme Judicial Court to clarify the law’s interpretation, concluded that the law was not unconstitutional and that Doherty’s lawsuit violated the Wrongful Birth Statute.

“There can be no constitutional claim regarding denial of court access unless the plaintiff has a viable underlying cause of action,” Hornby wrote, according to Law360. “Since…Doherty has no underlying cause of action, her federal constitutional right of access to courts has not been violated.”

The judge added that Doherty’s 14th amendment due process rights were not violated, since the law did not interfere with her medical care.

Hornby also said that the distinction between faulty birth control and a failed sterilization was allowed, since lawmakers could have a valid reason for making such a distinction.

In her original argument, Doherty claimed the law disproportionately targeted women. But Hornby took issue with that claim, too, writing that the law applies to parents of any gender.

‘I interpret [the law’s] reference to ‘birth’…as referring not to the delivery of the child that ends pregnancy, but to the beginning of the healthy child’s existence physically separate from the womb,” Hornby wrote. “Undoubtedly many mothers and fathers take different roles in the raising of a child, but the statute does not distinguish between them.”

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