Kayla Doherty’s attorney has asked U.S. District Judge D. Brock Hornby to send the following questions concerning the constitutionality of the state’s wrongful birth statute to the Maine Supreme Judicial Court:
— Is the term “sterilization procedure” found in [the statute] ambiguous because it is reasonably susceptible to more than one interpretation?
— Does [the statute] have a disparate impact on women, requiring the court to apply intermediate equal protection scrutiny when analyzing its constitutionality?
— Does the [statute] apply to product liability claims, when it was clearly enacted as part of the Maine Health Security Act, which applies only to “actions for professional negligence?”
— If the defendants’ reading [the statute] is correct, does the fact that plaintiff is left without any remedy whatsoever for her wrongful pregnancy violate the open court provision of the Maine Constitution or constitutional right to a civil jury trial?
— Does the public policy underlying [the statute] violate plaintiff’s rights under the due process and/or equal protection clauses of the 14th Amendment, when the United States Supreme Court has declared that privacy and decisional autonomy concerning contraception is a fundamental right?
Hornby could send all, none or some of the questions to Maine’s high court. If he does so, Doherty’s lawsuit would be on hold until the justices issued a decision.