Top N.J. court averts abortion trial

NEWARK, N.J. - A doctor has no duty to tell a woman considering an abortion that her embryo is an "existing human being," the New Jersey Supreme Court ruled yesterday, 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.

Abortion cases pending in Illinois and South Dakota have raised the same issue.

The 5-0 Supreme Court ruling reversed a unanimous decision by a three-judge appeals panel and dismissed the lawsuit of a Somerset County woman who had had an abortion.

"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," Justice Barry T. Albin wrote for New Jersey's highest court.

The ruling came in a lawsuit filed by Rosa Acuna, who had complications from a 1996 abortion and sued physician Sheldon C. Turkish, charging he failed to give her enough information before she signed a consent form for him to perform the abortion.

She asserted that she could not give informed consent because the doctor did not tell her of "the scientific and medical fact that [her 6- to 8-week-old embryo] was a complete, separate, unique and irreplaceable human being" and that an abortion would result in "killing an existing human being."

Acuna lawyer Harold J. Cassidy said they were considering whether to ask the U.S. Supreme Court to hear the case, contending that the Constitution's equal-protection guarantee was being violated. He argued that a fetus that is killed in the mother's body is treated differently than a child who is killed after being born.

"Millions of women across the nation have made the same complaint as Mrs. Acuna," said Cassidy, an antiabortion 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.

Turkish's attorney, John Zen Jackson, said, "The court properly recognized there are limits to a physician's duty in obtaining a patient's consent."

He doubted the U.S. Supreme Court could take the case, arguing the issues were solely matters of state law.

Marie Tasy, executive director of 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. "It is human from the minute it comes into existence, from the moment of conception."

The American Civil Liberties Union praised the decision, saying it "sends a message that New Jersey will not tolerate back-door efforts to curtail reproductive rights or free speech," said Ed Barocas, legal director of the state's ACLU chapter.

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 ACLU said a class-action medical-malpractice lawsuit with similar claims as those raised by Acuna was recently brought in Illinois.

In Acuna's case, an appellate ruling in April 2006 sent it back for possible trial in New Brunswick. That decision restored Acuna's claims that she did not receive enough information to give informed consent, claims that had been dismissed by a lower court.

Acuna was 29 and had two daughters following a miscarriage when she consulted Turkish on a pregnancy in April 1996. He 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 discussed it with her husband, and three days later 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.

Acuna, now 40, charges she suffered emotional distress for the death of the unborn child.