## Facts

- Kayla Doherty obtained contraceptive services in 2012 at a federally supported community health center in Maine.
- A physician attempted to insert a Merck-manufactured contraceptive implant (Implanon/Nexplanon) into Doherty’s arm using Merck’s applicator.
- Doherty alleged a defective applicator caused the physician to fail to insert any implant.
- In 2013, Doherty learned she was pregnant; medical examination did not locate the implant, and a nurse indicated it may never have been inserted.
- Doherty gave birth to a healthy child in 2014 and sought damages for pregnancy-related physical and emotional effects, medical expenses, and lost wages.
- Doherty sued Merck (products liability-related claims) and the United States (FTCA negligence based on the health center’s conduct).
- Defendants moved to dismiss under Maine’s wrongful-birth statute, which provides that the birth of a normal, healthy child is not a legally recognizable injury.
- The district court certified questions of Maine law to the Maine Supreme Judicial Court; after receiving answers, the district court dismissed the case.
- Doherty appealed, arguing the statute was unconstitutional under federal and Maine constitutional provisions.

## Issues

1. Whether Maine’s wrongful-birth statute constitutionally bars tort damages claims arising from the birth of a healthy child following an alleged contraceptive failure.
2. Whether the statute violates substantive due process by impermissibly burdening fundamental rights related to reproductive choice.
3. Whether the statute violates equal protection by drawing irrational distinctions among tort claimants or defendants.
4. Whether the statute violates Maine constitutional protections concerning the right to jury trial and access to courts.

## Decision

- The First Circuit affirmed dismissal of Doherty’s claims.
- The court held that the wrongful-birth statute did not burden a fundamental right because it limits post-birth tort remedies rather than access to contraception or abortion.
- Applying rational-basis review, the court found the statute rationally related to legitimate state interests, including limiting liability and declining to treat the birth of a healthy child as a compensable injury.
- The court rejected the equal protection challenge, concluding the legislature could rationally treat claims involving the birth of a healthy child differently from other alleged injuries.
- The court rejected Maine constitutional jury-trial and open-courts arguments, reasoning that the legislature may define and limit causes of action by determining what constitutes a legally cognizable injury.

## Legal Principles

- A state may, consistent with federal due process, restrict tort remedies without infringing fundamental reproductive rights when the law does not regulate access to contraception or abortion.
- When no fundamental right or suspect classification is implicated, statutory limits on tort recovery are reviewed under rational-basis scrutiny and are upheld if plausibly connected to legitimate governmental interests.
- Equal protection permits legislative line-drawing in tort law when the distinctions have a rational relationship to legitimate state policy choices.
- State constitutional jury-trial and open-courts protections generally do not prevent a legislature from defining the scope of cognizable injuries and limiting or abolishing particular causes of action.

## Conclusion

The First Circuit upheld Maine’s wrongful-birth statute as a valid legislative determination that the birth of a healthy child, following alleged negligence or product failure in preventing conception, is not a compensable injury, and it rejected constitutional challenges under due process, equal protection, and Maine’s jury-trial and access-to-courts provisions.


Doherty v. Merck & Co., 892 F.3d 493 (1st Cir. 2018)