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Product liability and sexual politics


Briarcliff Manor, N.Y. -- AS THE HOUSE and Senate work on reconciling their separate proposals to reduce the amount of RTC damages awarded in lawsuits, an unexpected issue has come to the table: sexual politics.

The House version would impose limits on punitive awards in all civil cases. The Senate bill is restricted to product-liability suits.

President Clinton has criticized both proposals, as have lobbyists for trial lawyers and other interest groups.

But among surprising opponents of tort reform are women's rights groups, including the Women's Legal Defense Fund and Democratic women in the House and Senate.

They argue that new federal limits on punitive damages would disproportionately hurt women, in part because they earn less than men.

When did tort reform become a feminist issue? Many of these same legislators are firm supporters of women having more reproductive choices -- which are being narrowed by the glut of lawsuits in American courts.

Why have anti-abortion activists been able to keep the French abortion pill, RU-486, out of the United States?

The answer is not political clout but liability law. In his new book, "The Pill," Bernard Asbell describes how a small band of pro-life conspirators, armed with only a fax machine, were so successful at raising the possibility of litigation that they dissuaded the French manufacturer from pursuing the U.S. market.

The current law is also responsible for dwindling interest in new birth-control research on the part of companies and for driving Benedictin, the morning-sickness pill, off the market, despite overwhelming evidence of its safety.

Companies are no doubt closely watching the fate of Norplant, the silicone contraceptive device inserted under the skin. Widely welcomed when it was introduced and endorsed by the American Society for Reproductive Medicine, today Norplant faces hundreds of lawsuits by women -- aided by the same group of lawyers that drove Dow Corning to its knees over silicone breast implants.

By limiting punitive damages and adding provisions to raise standards on what scientific evidence may be introduced in the courtroom, the House bill would discourage such destructive lawsuits.

Rep. Patricia Schroeder, D-Colo., nevertheless asserted that the House bill would have a "harsh discriminatory impact" on "women, children and lower-income individuals."

Sen. Barbara Boxer similarly condemned the more modest Senate proposal as also bad for women.

When Ms. Boxer argues that "women are going to be penalized" by tort reform, she ought to tell that to a pregnant friend of mine who spent three months desperate for something to control the continual nausea of early pregnancy.

And tell that to rural and poor women who are having trouble finding a doctor to deliver their babies because their family doctors have deemed it too risky -- legally speaking.

Ms. Boxer has also asserted that the product-liability crisis "is a figment of someone's imagination." Some figment.

Her comments came shortly before Dow Corning announced that it was forced to declare bankruptcy in the face of 75,000 silicone breast-implant suits.

Dow lost in court despite what the New England Journal of Medicine last year called a "paucity of evidence" proving any link between silicone implants and the connective tissue diseases plaintiffs blamed on them.

Driving a corporation into bankruptcy, endangering hundreds of jobs and scaring breast-cancer survivors out of reconstructive implant surgery because of an out-of-control tort system is not my idea of helping women.

Most of all, tell that to women who, like men, might benefit from the innovations that current liability law discourages manufacturers from even contemplating. One survey by the New York-based Conference Board, a business research group, found that 39 percent of companies polled decided not to introduce new products for fear of excessive liability.

It's hard to imagine why anyone would think that's good news for women, or for anyone.

Maggie Gallagher is author of "The Abolition of Marriage," a book about the rising divorce rate.

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