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N.J. Court: No Abortion Duty for Doctors
Wednesday, September 12, 2007
A doctor has no duty to tell a woman considering an abortion that her embryo
is an "existing human being," a unanimous New Jersey Supreme Court ruled
Wednesday, averting a trial over when human life begins.
The decision, citing past rulings, said the court "will not place a duty on
doctors when there is no consensus in the medical community or among the
public" on when life begins.
The 5-0 Supreme Court ruling reversed a unanimous ruling by a three-judge
appeals panel and dismissed the lawsuit of a woman who had an abortion.
Abortion cases pending in Illinois and South Dakota have raised the same
issue.
"On the profound issue of when life begins, this court cannot drive public
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," New Jersey Justice Barry T. Albin
wrote for the court.
The ruling came in a lawsuit filed by a woman who accused a doctor of
failing to give her enough information before she signed a consent form for
him to perform an abortion.
Rose Acuna questioned whether Dr. Sheldon C. Turkish misled her in 1996
about the development of the pregnancy, then in the sixth or seventh week.
She was 29 at the time and had two daughters following a miscarriage when
she consulted Turkish, who had delivered her second child.
"According to Acuna, Turkish told her that she 'needed an abortion because
(y)our kidneys are messing you up,'" court papers said. "Acuna asked Turkish
whether 'the baby was already there.' According to Acuna, Turkish replied,
'Don't be stupid, it's only blood.'"
Acuna signed a consent form, and Turkish did the abortion. Bleeding
continued, however, and seven weeks later Acuna went to a hospital. She was
diagnosed with an incomplete abortion and had another procedure.
"According to her, one of the nurses caring for her explained that the
procedure was necessary because Turkish 'had left parts of the baby inside
of (her).' Thus, Acuna concluded based on the reference to 'the baby' that
she had given consent to an abortion based on erroneous information," the
appellate panel wrote last year.
Acuna, now 40, says she suffered emotional distress for the death of an
unborn child.
Acuna's lawyer, Harold J. Cassidy, said he was considering an appeal to the
U.S. Supreme Court.
"Millions of women across the nation have made the same complaint as Mrs.
Acuna," said Cassidy, an anti-abortion lawyer based in Monmouth County who
is also involved in the South Dakota case.
"They have lost something of great value, which is dismissed as mere
tissue," added Cassidy, who is also known for successfully arguing against
surrogate parenting contracts in the 1987 "Baby M" case.
The doctor's lawyer, John Zen Jackson, said "the court properly recognized
there are limits to a physician's duty in obtaining a patient's consent."
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. It has never been enforced, however, having been put on
hold by a federal judge. The lawsuit challenging its constitutionality is
pending.
The American Civil Liberties Union said a class-action medical malpractice
lawsuit with similar claims as those raised by Acuna was recently brought in
Illinois.
Marie Tasy, executive director of the anti-abortion group New Jersey Right
to Life, decried the ruling. "My reaction is that once again the court
relies on an outdated schizophrenic mentality to the detriment of women and
indulges in semantic gymnastics to avoid the indisputable fact that a child
in the womb is a human being," she said.
The ACLU praised the decision, saying it "sends a message that New Jersey
will not tolerate backdoor efforts to curtail reproductive rights or free
speech," said Ed Barocas, legal director of the state's ACLU chapter.
N.J. Court: No Abortion Duty for Doctors
Wednesday, September 12, 2007
A doctor has no duty to tell a woman considering an abortion that her embryo
is an "existing human being," a unanimous New Jersey Supreme Court ruled
Wednesday, averting a trial over when human life begins.
The decision, citing past rulings, said the court "will not place a duty on
doctors when there is no consensus in the medical community or among the
public" on when life begins.
The 5-0 Supreme Court ruling reversed a unanimous ruling by a three-judge
appeals panel and dismissed the lawsuit of a woman who had an abortion.
Abortion cases pending in Illinois and South Dakota have raised the same
issue.
"On the profound issue of when life begins, this court cannot drive public
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," New Jersey Justice Barry T. Albin
wrote for the court.
The ruling came in a lawsuit filed by a woman who accused a doctor of
failing to give her enough information before she signed a consent form for
him to perform an abortion.
Rose Acuna questioned whether Dr. Sheldon C. Turkish misled her in 1996
about the development of the pregnancy, then in the sixth or seventh week.
She was 29 at the time and had two daughters following a miscarriage when
she consulted Turkish, who had delivered her second child.
"According to Acuna, Turkish told her that she 'needed an abortion because
(y)our kidneys are messing you up,'" court papers said. "Acuna asked Turkish
whether 'the baby was already there.' According to Acuna, Turkish replied,
'Don't be stupid, it's only blood.'"
Acuna signed a consent form, and Turkish did the abortion. Bleeding
continued, however, and seven weeks later Acuna went to a hospital. She was
diagnosed with an incomplete abortion and had another procedure.
"According to her, one of the nurses caring for her explained that the
procedure was necessary because Turkish 'had left parts of the baby inside
of (her).' Thus, Acuna concluded based on the reference to 'the baby' that
she had given consent to an abortion based on erroneous information," the
appellate panel wrote last year.
Acuna, now 40, says she suffered emotional distress for the death of an
unborn child.
Acuna's lawyer, Harold J. Cassidy, said he was considering an appeal to the
U.S. Supreme Court.
"Millions of women across the nation have made the same complaint as Mrs.
Acuna," said Cassidy, an anti-abortion lawyer based in Monmouth County who
is also involved in the South Dakota case.
"They have lost something of great value, which is dismissed as mere
tissue," added Cassidy, who is also known for successfully arguing against
surrogate parenting contracts in the 1987 "Baby M" case.
The doctor's lawyer, John Zen Jackson, said "the court properly recognized
there are limits to a physician's duty in obtaining a patient's consent."
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. It has never been enforced, however, having been put on
hold by a federal judge. The lawsuit challenging its constitutionality is
pending.
The American Civil Liberties Union said a class-action medical malpractice
lawsuit with similar claims as those raised by Acuna was recently brought in
Illinois.
Marie Tasy, executive director of the anti-abortion group New Jersey Right
to Life, decried the ruling. "My reaction is that once again the court
relies on an outdated schizophrenic mentality to the detriment of women and
indulges in semantic gymnastics to avoid the indisputable fact that a child
in the womb is a human being," she said.
The ACLU praised the decision, saying it "sends a message that New Jersey
will not tolerate backdoor efforts to curtail reproductive rights or free
speech," said Ed Barocas, legal director of the state's ACLU chapter.
