Acuna and the Abortion Right: Constraints on Informed Consent Litigation

Article excerpt

INTRODUCTION

During the first two decades after the United States Supreme Court upheld the abortion right in Roe v. Wade, (1) opponents of abortion mobilized to persuade federal courts to overturn the decision and introduced versions of a constitutional "Human Life Amendment" that would have prohibited legalized abortion. (2) In recent years however, antiabortion activists, frustrated by the lack of success in persuading the Court to overturn its holding in Roe and by the slow pace of incremental change through litigation in federal courts, have increasingly turned to malpractice litigation in state courts in an attempt to circumvent intractable constitutional precedent protecting the abortion right. In one such case, Acuna v. Turkish, Rosa Acuna sued her gynecologist, Dr. Sheldon Turkish, for medical malpractice under New Jersey state law for terminating her pregnancy without receiving properly informed consent. (3) Specifically, Acuna argued that her physician failed to provide her with material medical information, because he failed to state that the fetus was "a complete, separate, unique and irreplaceable human being," that the fetus may be capable of feeling pain, that she might suffer "post-abortion syndrome" following the procedure, and that "she would come to realize that she 'was responsible for killing her own child' and bear a weight of guilt for the rest of her life." (4)

Acuna is not an isolated case. During the litigation, Harold Cassidy, the plaintiff's lawyer, filed an almost identical lawsuit in Illinois alleging that a Chicago Planned Parenthood withheld material medical information. Such information included the fact that the abortion procedure "kills a living human being" and that it "subjects the mother to multiple risks," including "terminat[ing] the existing relationship with her existing offspring" and "subject[ing] her to substantial risk of severe emotional trauma." (5) Antiabortion organizations actively solicit women whom have had abortions and provide them with free legal counsel to file malpractice suits against their abortion providers for lack of informed consent. (6)

This Article evaluates the constitutional constraints stemming from sex discrimination on the subset of abortion malpractice claims that turns on lack of informed consent ("Acuna claims"). In "Acuna claims," plaintiffs allege a lack of consent to the abortion procedure but have not been physically injured--the only injury alleged by the plaintiff is psychological or emotional harm as well as the fact that the abortion took place. In Acuna v. Turkish itself, the plaintiff claimed that her abortion provider breached his professional duty of care by failing to disclose material "information"--notably the fetus's status as a "complete, separate, unique and irreplaceable human being," (7) the claim that abortion psychologically harms women, and that the patient "would come to realize that she 'was responsible for killing her own child' and bear a weight of guilt for the rest of her life" (8)--and, as a result, the provider did not receive the patient's fully informed consent prior to performing the procedure. In Acuna, the New Jersey Supreme Court found for the defendant physician on the grounds that "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'...." (9)

While several opponents of the abortion right have advocated the use of abortion malpractice suits to decrease the availability of abortion, (10) this Article is the first to propose a constitutional challenge to Acuna claims that is rooted in the principles of sex equality and women's autonomy. (11) No piece of scholarship has analyzed Acuna in depth or written about abortion malpractice suits themselves, (12) although some scholarship has considered the impact of tort law on reproductive rights in the context of statutes regulating particular types of tort claims dealing with abortion. …