As Goes New Jersey… We Hope.

Last week the New Jersey Supreme Court, in an unanimous decision, ruled that a doctor, prior to performing an abortion, was not required to tell his patient that the embryo inside her was “a complete, separate, unique, irreplaceable human being,” with the implication that abortion he was about to perform was the same as murder. The patient, Rosa Acuna, had filed a malpractice action against her doctor, Sheldon Turkish, after her abortion, claiming emotional distress, and asserted that he should have told her, as part of the informed consent process, that it was a “scientific and medical fact” that the abortion would result in the “killing of an existing human being.” The plaintiff claimed further that her doctor had a duty “to explain that the procedure (would) terminate the life of a living member of the species Homo sapiens, that is a human being.”

The court found that there was not even a remote consensus in New Jersey that the plaintiff’s assertions were medical facts, as opposed to religious or moral beliefs, and without this consensus the court said it would not impose this new legal duty on doctors. The court affirmed that the common law in New Jersey requires only that the physician must provide the patient only “material medical information, including gestational stage and medical risks involved in the procedure.”

The battleground in this case was the patient’s (a woman’s) right of self-determination. The plaintiff asserted that no woman can make an informed decision unless she is given the biological facts of the pregnancy. The defendants, in turn, asserted that requiring a doctor to make the statements that the plaintiff requested would place an undue burden on the woman’s right to self-determination.

The framing of the plaintiff’s arguments follows directly from the anti-choice strategy used in the Gonzales v. Carhart case decided by the Supreme Court last April. There Justice Kennedy adopted in his majority opinion the assertions by abortion opponents that abortion causes emotional harm to women:

“While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. … Severe depression and loss of esteem can follow. See ibid.

In a decision so fraught with emotional consequence some doctors may prefer not to disclose precise details of the means that will be used, confining themselves to the required statement of risks the procedure entails. From one standpoint this ought not to be surprising. Any number of patients facing imminent surgical procedures would prefer not to hear all details, lest the usual anxiety preceding invasive medical procedures become the more intense. This is likely the case with the abortion procedures here in issue….’Most of [the plaintiffs’] experts acknowledged that they do not describe to their patients what [the D&E and intact D&E] procedures entail in clear and precise terms’)….

It is, however, precisely this lack of information concerning the way in which the fetus will be killed that is of legitimate concern to the State. Casey, supra, at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning”). The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

It is a reasonable inference that a necessary effect of the regulation and the knowledge it conveys will be to encourage some women to carry the infant to full term, thus reducing the absolute number of late-term abortions. The medical profession, furthermore, may find different and less shocking methods to abort the fetus in the second trimester, thereby accommodating legislative demand. The State’s interest in respect for life is advanced by the dialogue that better informs the political and legal systems, the medical profession, expectant mothers, and society as a whole of the consequences that follow from a decision to elect a late-term abortion.” From Justice Kennedy’s Majority Opinion in Gonzales v. Carhart

The New Jersey case, Acuna v. Turkish, may not make it to the U. S. Supreme Court, although her lawyer says that he will file for certiorari, but a similar case from South Dakota might. In the latter case, it is a law passed by the state legislature that requires physicians to make the statements that Rose Acuna wanted her doctor to make. The South Dakota case will raise the constitutional questions that the New Jersey court was able to avoid, including questions about free speech and the extent to which the Gonzales case has gutted the Casey decision. Justice Kennedy seems to give great weight to the fact-finding judgments of state legislatures, even when they are clearly biased and one-sided. If the court acknowledges the procedural validity of the South Dakota legislature’s finding that it is a biological “fact” that an embryo is a member of the species homo sapiens and thus a human being, who is the Supreme Court, under Kennedy’s rationale, to dispute it.

I have had pro-choice obstetricians and abortion providers tell me that, medically, when a woman is pregnant, there are two patients, the woman and the embryo or fetus or unborn child. Any treatment of one must be balanced against the risks to the other. This is not remarkable.  The anti-choice folks are trying to slide from this, using sleight of words, to saying that the fetus is a separate human being, a member of the species homo sapiens, that abortion is murder and that the 14th Amendment must prohibit it. This is not a new argument, but it has been updated with arguments that the unique DNA of the fetus means that the fetus is a unique human being. This, Rose Acuna argued, she needed to know before she was able, as a woman, to make an informed decision.

In Gonzales, the Supreme Court upheld the ban on an abortion procedure without making an exception for the woman’s health. It thus ruled that states could enact restrictions on abortion to protect a woman’s mental health, while putting at risk her physical health – an interesting calculus that we have not seen the last of. Small cases that nibble around the edges of Casey, like Rose Acuna’s, will continue to rise and probably be decided in favor of ideology and morality, posing as medicine, at least if the abortion restrictions are enacted, after kangaroo hearings, by a state legislature or Congress. We can hope that not too many of these cases get to the Court until its make-up changes.

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