September 13, 2007
New Jersey’s Top Court Rejects Suit on Abortion
By TINA KELLEY
The New York Times
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NEWARK, Sept. 12 — Because there is no consensus on the issue of when life begins, a doctor does not have to tell a woman considering an abortion that the procedure would result in “killing an existing human being,” the New Jersey Supreme Court ruled on Wednesday, rejecting a woman’s arguments in a medical malpractice suit.
There are cases pending in Illinois and South Dakota regarding what doctors should be required to tell women considering abortions about when life begins.
In its unanimous decision, the New Jersey court ruled that, contrary to what the woman’s lawyer had argued, her 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, who wrote the 5-to-0 decision, said, “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.”
Ed Barocas, legal director of the American Civil Liberties Union of New Jersey, which filed a friend-of-the-court brief, welcomed the ruling. “Today’s victory sends a message that New Jersey will not tolerate backdoor efforts to curtail reproductive rights or free speech,” he said. “We will not allow the anti-choice lobby to force its moral or theological beliefs upon others.”
Drew Britcher, representing the New Jersey Obstetrical and Gynecological Society, also in the case as a friend of the court, added, “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.”
But Marie Tasy, executive director of New Jersey Right to Life, strongly disagreed with the decision, saying, “Once again the court relies upon an outdated, schizophrenic mentality to the detriment of women, and they are indulging in a game of semantic gymnastics to avoid the indisputable fact that a child in the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.”
The decision handed down today reversed a unanimous ruling by a three-judge appeals panel. The case began in 1998, when Rosa Acuna of Bound Brook, a mother of two, sued Sheldon C. Turkish, her gynecologist in Perth Amboy, over an incomplete abortion, and charged that he had not given her sufficient information before she allowed him to perform the abortion.
Mrs. Acuna, now 40, said in court proceedings that when she was in the early stages of pregnancy in 1996, she had asked Dr. Turkish “if it was the baby in there” and that Dr. Turkish had replied, “Don’t be stupid, it’s only blood.”
According to court papers, Dr. Turkish denied having made such a statement, adding 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.”
Mrs. Acuna had an abortion, and several weeks later went to the hospital after experiencing bleeding. She said that only after a nurse told her that “the doctor had left parts of the baby inside” did she realize it “was a baby and not just blood” inside her.
In court papers she said that she would not have had the abortion if she had received proper answers to her questions, and that she went on to suffer post-traumatic stress because of the procedure.
Mrs. Acuna’s lawyer, Harold Cassidy, who is widely recognized for his work in anti-abortion cases, said that he had spoken to Mrs. Acuna after the ruling and that although she was disappointed, the decision “deepened her resolve, and she has instructed me to file a petition in the United States Supreme Court.”
Mr. Cassidy is also involved in an Illinois case in which his client alleges that Planned Parenthood of the Chicago Area deceived women seeking to undergo abortions.
In South Dakota, a court case brought by Planned Parenthood of Minnesota, North Dakota and South Dakota against Gov. Mike Rounds of South Dakota challenged a state law requiring doctors to tell pregnant women that the embryo or fetus was a distinct, unique human being and that abortion terminated a life.
Because the law was challenged in court, it has not yet been enforced. A trial court ruled that it compelled the speech of doctors in an unconstitutional way, a decision that was upheld by part of the United States Court of Appeals for the Eighth Circuit. A decision from the full appeals court is pending.
As for Wednesday’s ruling, Mr. Cassidy said it was strange that the court did not address the doctor’s obligations to the embryo, his second patient, and asserted that women had the right to information about the development of the embryo and how it was affected by an abortion.
“If they are preventing this member of the species from coming into existence, that’s one kind of decision,” Mr. Cassidy said. “If they are terminating the life of a member of the species, that is a qualitatively different decision.”
Only five of the court’s seven justices ruled in the case, as Chief Justice Stuart Rabner arrived on the court after the case was argued, and Justice Helen E. Hoens was recused from the case. No explanation was given for the recusal.