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Top N.J. Court Reverses Abortion Ruling

  Court Watch  -   POSTED: 2007/09/13 09:53

A doctor has no duty to tell a woman considering an abortion that her embryo is an "existing human being," a unanimous New Jersey Supreme Court ruled Wednesday, 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.

The 5-0 Supreme Court ruling reversed a unanimous ruling by a three-judge appeals panel and dismissed the lawsuit of a woman who had an abortion. Abortion cases pending in Illinois and South Dakota have raised the same issue.

"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," New Jersey Justice Barry T. Albin wrote for the court.

The ruling came in a lawsuit filed by a woman who accused a doctor of failing to give her enough information before she signed a consent form for him to perform an abortion.

Rose Acuna questioned whether Dr. Sheldon C. Turkish misled her in 1996 about the development of the pregnancy, then in the sixth or seventh week. She was 29 at the time and had two daughters following a miscarriage when she consulted Turkish, who 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 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.

"According to her, one of the nurses caring for her explained that the procedure was necessary because Turkish 'had left parts of the baby inside of (her).' Thus, Acuna concluded based on the reference to 'the baby' that she had given consent to an abortion based on erroneous information," the appellate panel wrote last year.

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

Acuna's lawyer, Harold J. Cassidy, said he was considering an appeal to the U.S. Supreme Court.

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

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

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 lawsuit challenging its constitutionality is pending.

The American Civil Liberties Union said a class-action medical malpractice lawsuit with similar claims as those raised by Acuna was recently brought in Illinois.

Marie Tasy, executive director of the anti-abortion group 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.

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

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