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Staying cautiously away from a constitutional battleground, New Jersey’s Supreme Court on Wednesday ruled that a physician has no duty to inform a woman considering an abortion that an embryo is “an existing, living human being” or that the procedure will result in “the killing of a family member.” The justices, in Acuna v. Turkish , A-15-06, based their ruling entirely on law of informed consent in New Jersey and did not address the defendant doctor’s arguments that requiring such advice is both an undue burden on a woman’s right of self-determination and a violation of a physician’s right of free speech. “We do not resolve those arguments because we cannot find that New Jersey’s common law imposes a legal duty on a physician to give the instructions sought by plaintiff,” Justice Barry Albin wrote for the Court. “In light of our judicial precedents, we will not place a duty on doctors when there is no consensus in the medical community or among the public supporting plaintiff’s assertions.” The ruling means that plaintiff Rose Acuna cannot proceed with a claim that her gynecologist, Dr. Sheldon Turkish caused her to suffer emotionally and mentally by failing to counsel her properly about the condition of an embryo aborted in the sixth-to-eighth week of pregnancy. Acuna’s lawyer, Harold Cassidy, who heads a Shrewsbury firm, said that his client will file a petition for certiorari to the U.S. Supreme Court. “It is our judgment that the New Jersey law, as now construed by the [state] Supreme Court, presents a clear equal protection violation of Mrs. Acuna’s rights, and a misunderstanding and misapplication of the opinions of the United States Supreme Court,” Cassidy said in a statement Wednesday. Acuna, 29, who already had two children when she consulted Turkish about the abortion, suffered from renal glycosuria, a kidney disorder by which glucose is abnormally eliminated. Though Acuna stated in court papers that Turkish told her the pregnancy threatened her life, Turkish denied making that statement. Acuna claimed that when she asked Turkish “if the baby is already there,” he replied, “Don’t be stupid. It’s only blood.” Turkish claimed that he may have told her that a “seven-week pregnancy is not a living human being,” but rather it “is just tissue at this time.” Acuna underwent the abortion but suffered abnormal bleeding in the weeks that followed, requiring an additional operation. She claimed a nurse told her “that the doctor had left parts of the baby inside of you,” which prompted her to do research and eventually to conclude that the abortion had killed a human being. She was later diagnosed with post-traumatic stress disorder. Acuna sued Turkish, asserting claims of wrongful death and survivorship, negligent infliction of emotional distress, negligence and lack of informed consent. As to the last, she claimed Turkish failed to inform her that abortion involved “actually killing an existing human being.” Superior Court Judge Douglas Hague in Middlesex County granted partial summary judgment, dismissing all but the negligence claim and specifically holding that a 6-to-8-week-old fetus is not a “person” under the Fourteenth Amendment or under New Jersey law for purposes of maintaining claims for wrongful death, survival, or negligent infliction of emotional distress. The Appellate Division reversed dismissal of the emotional-distress and lack-of-informed-consent claims, finding that whether or not a fetus is a “person,” the alleged malpractice — the failure to obtain informed consent — was not a derivative cause of action. Finding that a physician owes a duty of care to disclose to a pregnant woman “information that a prudent patient might find significant in deciding whether or not to terminate her pregnancy,” the appeals panel remanded the case for development of a factual record. Turkish again made a motion for summary judgment dismissing the claims and Superior Court Judge Amy Chambers granted it. She found that requiring a physician to advise a pregnant woman that her embryo “is in all material respects equivalent to a person born and alive” would require doctors to convey “a value judgment, not a medical fact.” The Appellate Division reversed, finding there was at least a triable issue of fact as to whether Turkish accurately answered Acuna’s question about whether the baby was “already there.” A reasonable patient might not consider the information Turkish imparted to be “the information necessary to make an informed decision,” the panel said, remanding the case for trial at which expert testimony could be adduced. The Court granted certification and, in Wednesday’s ruling, predicted that any such trial would become a battle of experts on the question of when human life begins. “Clearly, there is no consensus in the medical community or society supporting plaintiff’s position that a six- to eight-week-old embryo is, as a matter of biological fact — as opposed to a moral, theological, or philosophical judgment — ‘a complete, separate, unique and irreplaceable human being’ or that terminating an early pregnancy involves ‘actually killing an existing human being,’” Albin wrote. As such, there is no support for finding a legal duty for doctors to tell their pregnant patients that aborting an embryo is the killing of an existing human being, the Court found. “[T]he common law doctrine of informed consent requires doctors to provide their pregnant patients seeking an abortion only with material medical information, including gestational stage and medical risks involved in the procedure,” Albin wrote. “Under that doctrine of informed consent, the knowledge that plaintiff sought from defendant cannot be compelled from a doctor who may have a different scientific, moral, or philosophical viewpoint on the issue of when life begins.” The ruling was welcomed by the American Civil Liberties Union and the New Jersey Obstetric and Gynecology Society, both of which had argued, as amicus curiae, that the case was being used by abortion opponents to force a legal definition of when life begins. “This was an underhanded attempt [by abortion opponents] to turn doctors into ideological mouthpieces and subject women to non-medical moral judgments,” said Brigitte Amiri, a staff attorney at the ACLU’s New York office. Edward Barocas, legal director of the ACLU’s New Jersey chapter, said, “We will not allow the antichoice lobby to force its moral or theological beliefs upon others and to intimidate doctors or women with lawsuits that are without merit.” The lawyer for the ob/gyn society, E. Drew Britcher of Glen Rock’s Britcher, Leone & Roth, said, “The Court struck the appropriate balance between the law of informed consent and the circumstances surrounding a pregnant woman in the early stages of pregnancy being advised of the nature of pregnancy.” New Jersey Right to Life, the state’s principal anti-abortion organization, said, through its executive director, Marie Tasy, “The Court once again relied on a schizophrenic mentality to the detriment of women and engaged in semantic gymnastics to avoid the indisputable truth that an unborn child is a human being.” Turkish’s attorney, John Zen Jackson, of Warren’s Kalison, McBride, Jackson & Murphy, did not return a telephone call seeking comment. The Court’s ruling was unanimous, with Justice Helen Hoens and newly appointed Chief Justice Stuart Rabner not participating.

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