The New Jersey Supreme Court on abortion.

The law, lawyers, and the court.
Feb. 20 2007 6:18 PM

Human Like Me?

The New Jersey Supreme Court case that could define the fetus.

What should doctors who perform abortions tell their patients beforehand? Of course women need to understand the risks of abortion in order to give their informed consent, as patients do for any medical procedure. But the risks of what, exactly, and to whom? In answering those questions, a case argued before the New Jersey Supreme Court on Tuesday could upend the practices of abortion providers in the state (and get the attention of the rest of the country) by enlisting juries in defining the nature of a fetus.

Rosa Acuna was a 29-year-old mother of two when she went to see her doctor, Sheldon Turkish, complaining of abdominal pain. An ultrasound test showed she was between five and seven weeks pregnant. Acuna says she asked Turkish if the "baby was already there," and that he responded, "don't be stupid, it is nothing but blood." Acuna signed a consent form and had an abortion. She says she then went to the library, read up on human development, and decided that her doctor had ended her relationship with a child she'd named Andres.

Emily Bazelon Emily Bazelon

Emily Bazelon is a Slate senior editor and the Truman Capote Fellow at Yale Law School. She is the author of Sticks and Stones.

In 2004, Acuna sued Dr. Turkish for medical malpractice, arguing that abortion providers have a duty to tell their patients that the fetus or embryo they are carrying is "a complete, separate, unique and irreplaceable human being" and that the "abortion did not prevent a human being from coming into existence but actually killed an existing human being." Acuna's lawyer, Harold Cassidy, argues that they are simple statements of medical fact. What else is an embryo or fetus, if not an existing human being? Dr. Turkish's lawyers and the American Civil Liberties Union argue that Cassidy's formulation is an effort to force anti-abortion ideology into the mouths of abortion providers. Women won't be left better informed about biology. They'll be made to feel as if they're killing a child.

Trial court Judge Amy Piro Chambers dismissed the suit against Turkish. "A doctor cannot be found negligent for failing to present as medical fact the point of view of one faction in this grave ongoing national debate," she wrote. But last year, a New Jersey appeals court reversed, arguing that Acuna could go to a jury to argue over what medical information a doctor has to disclose when advising a patient about ending a pregnancy. If the appeals court ruling stands, Turkish's lawyers argue, then New Jersey will have a whole new standard for informed consent, in which they must say what Cassidy wants them to say: that the fetus is an existing human, member of the species homo sapiens, etc. And even if Turkish wins at trial, his lawyers warn, abortion providers throughout the state could have to start doing this to head off the threat of a lawsuit (because otherwise they'd have to pay when those suits go to a jury, too).

Tuesday's argument at the state Supreme Court (which I watched on a handy court webcast) produced awkward moments for both sides. Turkish's lawyer, John Jackson, had to concede that his client had made an "offensive comment" and hadn't shown "particularly great bedside manner." (Turkish disputes Acuna's claim that he said a fetus was "nothing but blood," but at this pre-jury stage of the case, he's stuck with it.) "Set aside the philosophical and theological issue at the periphery of this case," about the human status of the fetus, Justice Barry Albin asked. Why shouldn't this case go to a jury? Couldn't the court impose some standard of medical accuracy on abortion providers—an explanation about gestational age and development?

In fact, the notion that abortion providers should talk to women about gestational development isn't hugely controversial. Planned Parenthood v. Casey, the 1992 ruling that affirmed Roe v. Wade, says that states can require doctors to give women information about the fetus that is "truthful and not misleading." "Most women considering an abortion would deem the impact on the fetus relevant, if not dispositive, to the decision," the justices wrote. Thirty-two states have since written statutes that require doctors to make specific disclosures before performing an abortion. According to the Guttmacher Institute, a think tank *, most of the states include in their litany "probable gestational age." (A few go further and make contested claims about the age at which a fetus feels pain.)

But as Turkish's lawyer argued Tuesday, Acuna isn't maintaining that she had a right to be informed about embryonic or fetal development. The fetus-equals-existing-human-being argument she's making is a new and different approach. Only one state—South Dakota—has a statute requiring doctors to make such a statement. Passed in 2005, the law hasn't gone into effect because it's being challenged in federal court, in a suit that Harold Cassidy is helping the state to defend against. In the South Dakota case and the New Jersey suit, the lawyers fighting Cassidy argue that his underlying aim is to put the status of the fetus on trial, and thus attack the basic right to abortion in Roe v. Wade. If five medical experts say that the fetus is a human being the same as you and me, and testify in detail to prove it, then why shouldn't the state protect it like the rest of the human race?

Before the New Jersey court on Tuesday, Cassidy was at times oddly cagey. He called the justices' attention to a chart he'd submitted in which his scientific experts describe the "208 parts, in three different systems" that have been observed in a 5-week-old fetus. But he wasn't eager to say what he thinks the standard for informed consent to an abortion should be. "We can't make up a written disclosure with magic words," he said in response to a question by Chief Justice James Zazzali. When the justices pressed, Cassidy said that Turkish should have told Acuna "enough to describe to her what was there."

"You're not going to answer the question, are you?" Justice Albin finally said.

"I shall," Cassidy promised, and then finally said that abortion providers should be required to tell patients that the embryo or fetus "is a member of the species homo sapiens, that you're terminating the life of a member of the species." He concluded, "many women go through with the procedure anyway, and they do better later if they weren't deceived."

The justices, however, seemed skeptical that Rosa Acuna could really have been deceived, however unfortunate Turkish's wording. Didn't Acuna know that being pregnant meant that "in eight months, if there was no abortion, she'd have a baby?" Albin asked.

Yes, she got that, Cassidy conceded. "But she did not know biology." Which took the justices back to where they'd started. Is this case about medical facts, or something else entirely? It's an abstract and frustratingly slippery question. That's why courts often prefer to avoid this territory. If the New Jersey court wades in, it won't just change how doctors in the state talk about abortion. It will change how the rest of us do, too.

Correction, Feb. 26, 2007: The original sentence called the Guttmacher Institute the research arm of Planned Parenthood. In fact, the institute has been an independent nonprofit organization since 1977. Planned Parenthood contributes 4 percent of its budget and appoints four of 42 board members. (Return  to the corrected sentence.)