Unanimous Responsible Jurisprudence

The New Jersey State Supreme Court rules unanimously against a plaintiff's claim that her physician ought to have told her that her abortion would end a human life.

This Wednesday we were all witness to the responsible judicial reasoning of the New Jersey Supreme Court.

The New Jersey Court has always avoided politicizing reproductive health. This most recent case, brought by a woman who was seeking to charge her doctor with medical malpractice, centered on the claim that doctors should be required to tell any woman seeking an abortion that the procedure would result in "killing an existing human being."

The court rejected this claim by finding, in a unanimous decision, that the plaintiff's doctor had "no legal duty" to tell her that her six-to-eight-week-old embryo was "a complete, separate, unique and irreplaceable human being." Justice Barry T. Albin, in the 5-to-0 decision, found:

There is not even remotely a consensus among New Jersey's medical community or citizenry that the plaintiff's assertions are medical facts, as opposed to firmly held moral, philosophical and religious beliefs, to support the establishment of the duty she would impose on all physicians.

The story goes something like this: Rose Acuna went to see Dr. Sheldon C. Turkish, the doctor who had delivered her second child, in 1996, about the development of a pregnancy. According to Acuna, Turkish claimed that Acuna "needed an abortion because (y)our kidneys are messing you up." Acuna asked Turkish whether "the baby was already there." Turkish allegedly replied, "Don't be stupid, it's only blood." Acuna then signed a consent form, and Turkish performed the abortion. Bleeding continued, however, and seven weeks later Acuna went to a hospital. She was diagnosed with an incomplete abortion and had a second procedure. Now 40, Acuna is claiming that she suffered emotional distress for the death of her unborn child, due to the misinformation given her by Dr. Turkish.

Dr. Turkish contests Ms. Acuna's description of the events. According to court papers, Turkish denied having made the "don't be stupid" remark, saying that he probably told her that a "seven-week pregnancy is not a living human being," but rather that it "is just tissue at this time."

Here, of course, is the real question. It is a baby? Or is it merely tissue? This case brings a pressing political issue into sharp relief: If doctors are supposed refrain from providing moral judgement, where is the line between science and public morality? This case is a harbinger for similar cases pending in South Dakota and Illinois. In South Dakota, Planned Parenthood is challenging a 2005 law that requires abortion doctors to tell women several things, including that an abortion ends human life. Mrs. Acuna's lawyer, Harold Cassidy, is also involved in the Illinois case in which his client alleges that Planned Parenthood of the Chicago Area has deceived women seeking to undergo abortions.

While reproductive rights groups celebrate a victory in which women's health and well-being doesn't succumb to unjustified politicization, some groups are spinning a tale about lies and deceit, and on top of it all calling the decision a "ruling against choice." From Walter M. Weber of the National Review:

The court declared that there was "clearly no consensus" on whether an embryo is, as matter of "biological fact" a "human being." Why? Because there is "moral, theological, [and] ideological" disagreement over the status of unborn children. But Acuna wasn't asking the doctor for "moral, theological, or ideological" information. She wanted the cold, hard, medical facts. Then she could apply her own value system in responding to those facts. The state supreme court admitted that its decision ultimately represented a "value judgment" by the court. One shudders to think what "value" justifies subordinating a woman's supposed right to "choice" to an abortionist's callous and patronizing deception.

This way of framing the issue is very telling – read the article and you'll see some interesting tactics. Portray the doctor as a goon. Portray the woman as a tragic and complacent victim. Twist the language of choice enough so that it's completely unrecognizable.

Ed Barocas, legal director of the ACLU of New Jersey, which filed a friend-of-the-court brief, said, "Today's victory sends a message that New Jersey will not tolerate back door efforts to curtail reproductive rights or free speech…We will not allow the anti-choice lobby to force its moral or theological beliefs upon others." Drew Britcher, a representative of the New Jersey Obstetrical and Gynecological Society added that, "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."

This certainly isn't the last time we can expect to see these issues crop up in legal disputes. This is dodgy terrain: Should we tell doctors what to tell women? Or what not to tell them? Advocates of reproductive freedom know very well that this tactic has been used to deceive women in the past. Poor women and women of color especially have long faced sterilization abuse and battled against coercive contraception tactics. Our job is to find a way to differentiate between coercion and adequate information. No easy task, but one that we're clearly going to have to reckon with.