The Flawed Logic of Rose Mimms on Tort Reform

As discussed in my recent blog post, Arkansas right-to-life leader Rose Mimms has penned an op-ed for Townhall that attacks Issue One, the tort reform amendment on November’s ballot. I discussed some of my problems with her op-ed in that post; today I criticize the substance of her argument that, somehow, Issue One devalues life.

It is fair to say that Mimms’s reasoning is difficult to follow, but one of her central objections is that Issue One is not pro-life because it “puts a price on life.” This has been discussed on TAP before, so there’s no need to go into great detail on it. Suffice it to say, if you have an objection to “putting a price on life,” then you have an objection to any instance where a jury rewards money in a wrongful death suit. Mimms tries to argue that it is good for the jury process to determine what non-economic damages should be after condemning Issue One’s “arbitrary” cap. But jury awards are just as arbitrary. Whether a ballot issue, a judge, or a jury determines non-economic damages, it still violates the standard set forth by Mimms. Her own defense of the jury system undercuts her contention that life is “priceless.”
Mimms also appears to misunderstand how the tort system works. She describes a number of horrible situations that could occur, then says that a jury could not award more than $500,000 for non-economic damages in these instances. She does not seem to realize that certain kinds of bad actions (such as a successful attempt to harm someone), would not be constrained by the amendment’s limit, because a punitive-damages multiplier could be used to increase the jury award in those cases up to any amount.

Her confusion is also evident when she says that if a nursing home resident is a victim of a crime, the nursing home should pay damages. That has nothing to do with Issue One, since that measure leaves the liability of nursing homes for the crimes that someone else commits against their residents completely untouched.

She also claims that bad nursing homes will have no incentive to improve care under Issue One, since they will no longer be facing unlimited non-economic damages. As we’ve discussed elsewhere on TAP, the evidence indicates that lawsuits against nursing homes generally do not have an impact on quality. Both good and bad nursing homes get sued at about the same rate.

Mimms also ignores the evidence that tort reform can lead to better medical care. As we’ve noted before, when tort reform was passed in Texas, the number of doctors in that state nearly doubled. If Mimms is going to stretch the boundaries of the pro-life cause to embrace protecting lawyers’ income, then she should consider stretching it to include greater access to health care (which seems a much closer fit for the pro-life message).

In fact, Mimms should really be consistent in her public policy advocacy. She opposes tort reform because it “is one more step in devaluing life in a culture where we simply can’t afford any more slips down that slope.” If she really thinks that, then I also expect her to start supporting gun control. After all, some people say that gun control will save lives. Or she should support a national speed limit of, say, 30 miles per hour. The evidence is clear that higher speed limits lead to more automotive deaths. There are also plenty of environmentalists who say that failure to enact stricter pollution controls leads to higher death rates. Mimms should be marching in the street during the next environmental rally.

Of course, these are absurd examples of stretching the “pro-life” label until it is meaningless. You can say just about any public policy position is about protecting the life of someone. You can also oppose just about any public policy by saying that it “devalues life.” That is why Mimms is either confused or disingenuous when she tries to marshal her pro-life credentials to attack Issue One.

It is a sad thing to see members of the pro-life community in Arkansas providing cover for reactionary lawyers who are fighting tort reform. At least the lawsuit lobby attacks the issue with relevant, if flawed, arguments. Pro-life leaders like Mimms are, too often, internally inconsistent; they fail to describe the tort system accurately in their arguments against Issue One. Their attempts to use their pro-life credentials to fight tort reform misleads the public and prostitutes the cause of the protection of life.

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