The Supreme Court Of New Jersey Takes On The Abortion Debate, DD, 3/08

Defense Digest

New Jersey - Health Care Liability

The Supreme Court Of New Jersey Takes On The Abortion Debate: Informed Consent & Medical Consensus
By Noelle P. Conners, Esq.*

In Acuna v. Turkish, 192 N.J. 399 (2007), the Supreme Court of New Jersey addressed one of our society's most divisive issues, abortion. The legal issue considered by the Court was the scope of informed consent owed by a doctor to a woman seeking an abortion. While the Court's ultimate conclusion is undoubtedly significant, also of interest is the rationale on which the Court relied. By defining the parameters of the abortion argument as dependent upon the variable of medical community consensus, it ensures that as technology evolves, the courts will be forced to consider this and other similarly related issues in the future.

Plaintiff Rose Acuna (Acuna) was a married, 29-year-old mother of two daughters under the age of three, when she learned from her gynecologist, defendant Dr. Sheldon Turkish (Turkish), that she was in her sixth to eighth week of pregnancy. In reaching the decision to terminate the pregnancy, Acuna asked Turkish if she was carrying "a baby" and alleged that he replied that it was only "blood." Turkish denied having this exchange and believed he would have responded by telling Acuna that a "seven-week pregnancy is not a living human being," but rather "is just tissue at this time." Ultimately, Acuna underwent a vacuum aspiration, which ended the pregnancy, but from which she suffered complications necessitating a subsequent dilatation and curettage. It was after that procedure that Acuna maintained she was told details of the procedure and came to believe that it "was a baby and not just blood."

Although Acuna brought a myriad of claims against Turkish, the only claim considered by the Supreme Court was the allegation that Turkish failed to provide her with the necessary material medical information regarding the decision of whether to terminate the pregnancy. She specifically alleged that Turkish had a duty "to explain that the procedure [would] terminate the life of a living....being" and that he was required to tell her that in consenting to an abortion she was agreeing to "kill a child of [hers] already in existence." That is, in order for her to make an informed decision regarding the abortion, it was necessary for her to know that at six to eight weeks of gestation, her embryo was an existing human being.

In considering the forgoing, the Court first discussed the duty of a physician to ensure a patient had sufficient material information to give informed consent. The doctrine of informed consent is well settled and imposes on a physician the "legal duty to disclose to the patient all medical information that a reasonably prudent person would find material before deciding whether to undergo a medical procedure." As a general matter, informed consent requires at least the notification of medical options, the risks associated with those options, and the nature of the intended procedure.

However, the standard against which the scope of informed consent is measured is predicated on what a reasonable person needs to know or what a reasonable person would find significant given the risks. Accordingly, a plaintiff making a failure to provide informed consent claim must demonstrate that the physician withheld medical information that a reasonably prudent person in like circumstances would have considered material before consenting to undergo the recommended procedure. As applied to Acuna, the Court described the issue as the withholding of medical information that a reasonably prudent pregnant woman in like circumstances would have considered material before consenting to the termination of a pregnancy.

Acuna maintained that expert witnesses could satisfy this burden and prove as a biological fact that her embryo was an existing human being at the time of the abortion. The opposing argument was that other expert witnesses would offer that the characterization of Acuna's embryo as a living human being was a moral, theological or ideological opinion, but not a scientific or biological fact.

As to whether physicians have a legal duty to give the instructions requested by a plaintiff as a component of informed consent, the Court noted that they did not represent the medical professional norm within New Jersey and that it had not been provided with any information indicating that even a minority of physicians in New Jersey or any other state provide the instructions advocated by Acuna. Moreover, statutorily, neither New Jersey's Wrongful Death Act nor New Jersey's Code of Criminal Justice include a fetus within the definition of a "person" or "human being" and that claims and actions arising out of the death of an infant before birth are not recognized.

The Court also looked to United States Supreme Court cases for assistance in determining when a physician should be charged with advising that a human life has begun. The Court noted that in Roe v. Wade the task of determining when life begins was intentionally left unanswered given the lack of consensus amongst not just the judiciary, but also the disciplines of medicine, philosophy and theology. Even more illustrative was that in Planned Parenthood of Se. Pa. v. Casey, while an "interest in potential life" was recognized, neither a fetus nor an embryo was ever described as a human being.

Accordingly, the Court found that New Jersey's common law did not impose a legal duty upon physicians to provide the instructions sought by Acuna and summed up its decision with the following:

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. We are not unmindful of the raging debate that has roiled the nation and of the sincerely and passionately held beliefs by those on opposites sides of the debate. We are sympathetic to the deep pain plaintiff [Acuna] has suffered in the aftermath of the termination of her pregnancy. However, the common law doctrine of informed consent requires doctors to provide their pregnant patients seeking an abortion only with material medical information, including gestational state and medical risks involved in the procedure. Under that doctrine informed consent, the knowledge that plaintiff sought from defendant [Turkish] cannot be compelled from a doctor who may have a different scientific, moral, or philosophical viewpoint on the issue of when life begins. Therefore, we do not find that the common law commands a physician to inform a pregnant patient that an embryo is an existing, living human being and that an abortion results in the killing of a family member.

Given the lack of both judicial precedent and consensus in the medical community as to when life begins, this outcome is not surprising and does unambiguously set forth the present boundaries for this aspect of informed consent regarding abortions. Physicians will not be held to the standard advocated by Acuna and will not be required to offer any opinion as to when human life begins. The issue for the future, however, is that the boundaries currently set by the Court are not permanently fixed. This is because one of the variables the Court relies upon, the lack of consensus in the medical and scientific community, is subject to perpetual change. Medicine and science are in perpetual flux. Driven by seemingly daily technological breakthroughs, it is the inherent nature of both disciplines to always pursue the unknown. In contrast, moral, philosophical, and religious viewpoints are permanently fixed and remain unchanged despite the advent of new technology. Medical and scientific consensus, therefore, are not only subject to, but also prone to, change.

One example of technological change effecting the medical consensus on the beginning of life is our ability to deliver pre-mature babies at increasingly earlier stages in their development. As technology lowers the gestational age of a viable fetus, it will certainly have an impact on the understanding of when life begins in the medical community. Another possibility pertains to the treatment of embryos produced through in-vitro fertilization. If one day technology allows for the birth of a baby completely outside a human womb, when did its life begin? The courts, therefore, by their own doing in relying upon an ever changing variable will at some point in the future have to contend with whatever new information is produced by the consensus of the medical and scientific communities as to when life begins.

The courts will then, presumably, have to revisit the question of exactly what is required to be told to a patient before the "consent" is legally "informed."

*Noelle is an associate in our Cherry Hill, New Jersey, office who can be reached at npconners@mdwcg.com or (856) 414-6025.