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State High Court rules on informed consent abortion case

A State Supreme Court held yesterday that there is no duty requiring 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. A woman had filed a medical malpractice and wrongful death lawsuit against her doctor after she received an abortion in 1996. The woman claimed that, prior to signing the consent form, she and her husband were not given material medical information that they needed to make the decision. Specifically, the woman alleged medical malpractice when the doctor failed to inform her of “‘the scientific and medical fact that [her six- to eight-week-old embryo] was a complete, separate, unique and irreplaceable human being’ and that an abortion would result in ‘killing an existing human being.'” Lawsuits pending in Illinois and other states have raised similar issues.

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At the trial level, the judge granted the defendant doctor’s partial motions to dismiss the woman’s wrongful death, survival, and emotional distress claim. The basis for this ruling was that the woman’s 6-8 week old fetus was not a person under the Fourteenth Amendment or under the laws of New Jersey for the purposes of wrongful death, survival, or negligent infliction of emotional distress actions.

On what would be the case’s first trip to the state appellate court, the New Jersey Appellate Division affirmed the dismissal of the wrongful death claims and reversed the dismissal of the emotional distress claim. The court reasoned that failing to give a pregnant woman material information before terminating a pregnancy could cause the woman to suffer from emotional distress. And so that the trial judge could fully develop a factual record as to whether the woman did suffer emotional distress, the appellate court sent the case back to the trial judge.

After further development of the record, the trial judge granted a motion for summary judgment. However, the trial judge did not reach the issue of whether the woman suffered emotional distress. The judge reasoned that the woman, who already had two children, knew at the time that she was pregnant and that “she had growing within her the beginnings of a unique human life that would result in a birth of the living child if the pregnancy continued without complications or intervention.” Because the woman at least knew those facts, the trial judge ruled that there was no lack of material information. To require more of the doctor – to require that the doctor tell her that the 6-8 week old fetus was already a human being – would have required the doctor to answer a question that “those trained in the respective disciplines of medicine, philosophy, and theology” have not yet been able to answer.

The woman appealed this second ruling by the trial judge, and the appellate court again reversed on the issue of informed consent. The appellate court did not reach the question of whether the doctor had to go as far as saying that the 6-8 week old fetus was a human being or that the abortion would terminate the life of a family member. Instead, the appellate court framed the issue much more narrowly, stating that the woman’s lawsuit was about informed consent. In the mind of the appellate court, the issue wasn’t whether the doctor had to say that a fetus was a human being, the issue was whether the information the doctor had given was enough for a reasonable person to make an informed decision. Because the answer to that question could only come from a jury, the appellate court vacated the trial court’s grant of summary judgment.

The defendant then appealed to the New Jersey Supreme Court. There, the woman stated that she wanted a chance to go to trial and present expert testimony that an embryo was in fact a human being at 6-8 weeks. In response, the defendant stated that it planned to present expert testimony that the opposite was true. The Court, citing the United States Supreme Court precedent of Roe v. Wade and Planned Parenthood v. Casey, noted the lack of medical and philosophical consensus on the issue, and declined to give the woman the chance to make that argument. I
nstead, the New Jersey Supreme Court correctly avoided the Constitutional issues by deciding the case on common law grounds. Because a physician’s duty to inform relates only to medical information, the New Jersey Supreme Court ruled that there could not have been a breach of that duty – and therefore no medical malpractice – where the information that the woman sought was not medical.