N.J. Supreme Court Rules That Physicians Do Not Have To Tell Women Seeking Abortions That Procedure Kills Human Being

Main Category: Abortion
Also Included In: Litigation / Medical Malpractice;  Primary Care / General Practice;  Women's Health / Gynecology
Article Date: 17 Sep 2007 - 1:00 PDT

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The New Jersey Supreme Court on Wednesday unanimously ruled that physicians are not required to inform women seeking abortions that the procedure would result in "killing an existing human being," the New York Times reports (Kelley, New York Times, 9/13). The court in July 2006 agreed to hear the appeal of a decision that a jury can consider whether a doctor gave adequate medical information to a woman who claims she was unable to give informed consent to undergo an abortion.

According to court papers, physician Sheldon Turkish in 1996 told Rosa Acuna, who was eight weeks pregnant, that she had to undergo an "immediate abortion" because her pregnancy was causing damage to her kidneys. Acuna charges that Turkish "incorrectly told [her] ... that she was not aborting a human life" when she underwent the procedure, adding that she has experienced psychological trauma, including depression, post-traumatic stress disorder and psychosexual dysfunction, as a result of the abortion.

A trial judge previously had dismissed the case, stating that the U.S. Supreme Court has ruled that a "fetus is not a person," but an appellate court ruled that Acuna could sue for damages involving "a question of medical malpractice." A three-judge panel of the Appellate Division of the New Jersey Superior Court in April dismissed the wrongful death claim in the lawsuit but wrote that a jury could decide "[w]hat medical information is material and must be disclosed by an obstetrician when advising a patient to terminate a pregnancy and what medical information is material when the patient asks if the 'baby' is already there" (Kaiser Daily Women's Health Policy Report, 7/14/06).

State Supreme Court Ruling
Justice Barry Albin in the state Supreme Court's opinion wrote that it is established that a doctor must provide women information about the medical risks of undergoing an abortion; however, there is no requirement for a doctor to go further. "We know of no common law duty requiring a physician to instruct the woman that the embryo is an 'existing human being' and suggesting that an abortion is tantamount to murder," Albin wrote, adding that there is no consensus among the medical community or residents that such a statement is based on medical facts rather than "firmly held moral, philosophical and religious beliefs."

Albin also wrote, "On the profound issue of when life begins, this court cannot drive policy in one particular direction by the engine of the common law when the opposing sides, which represent so many of our citizens, are arrayed along a deep societal and philosophical divide" (Coscarelli, Newark Star-Ledger, 9/13). The court ruled that physicians are only required "to provide their pregnant patients seeking an abortion with material medical information, including gestational stage and medical risks involved in the procedure" (AFP/Google.com, 9/12). Harold Cassidy, Acuna's lawyer, said the decision "deepened [Acuna's] resolve, and she has instructed me to file a petition in the United States Supreme Court" (New York Times, 9/13).

Reaction, Comments
Cassidy said the decision is "stunning and surprising," adding, "Many women of our state are losing their children and their constitutionally protected interest in their relationship with their children in abortion procedures they would not have had if they were told truthful biological facts." John Zen Jackson, Turkish's attorney, said the case was a "Trojan Horse" to challenge Roe v. Wade -- the 1973 Supreme Court case that effectively barred state abortion bans. "The court correctly held there are limits to a physician's duty to obtain informed consent and that duty does not include the presentation of comments based in ideology, philosophy or politics," Jackson said (Newark Star-Ledger, 9/13).

Ed Barocas -- legal director of the American Civil Liberties Union of New Jersey, which filed a friend-of-the-court brief -- said, "Today's victory sends a message that New Jersey will not tolerate backdoor efforts to curtail reproductive rights or free speech." Drew Britcher -- an attorney for the New Jersey Obstetrical and Gynecological Society, who also filed a friend-of-the-court brief -- said, "The court struck the proper balance between the law of informed consent and the law that relates to an obstetrician or other physician's duty in advising the person who's pregnant."

Marie Tasy, executive director of New Jersey Right to Life, disagreed with the ruling, saying, "Once again the court relies upon an outdated, schizophrenic mentality to the detriment of women, and they are indulging in a game of semantic gymnastics to avoid the indisputable fact that a child in the womb is a human being" (New York Times, 9/13).

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