Interesting State Supreme Court Ruling

The news story is here, but in summary, Rosa Acuna asked for, and was given an abortion in 1996. She later tried to sue her obstetrician for not informing her that the seven week fetus she was carying was “a complete, separate, unique and irreplaceable human being”, or that since it was an existing human being abortion would be murder. This has passed through courts since then, and the New Jersey State Supreme Court has just made the following ruling:-

“We do not find that the common law commands 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”.

It’s beyond me why anyone would think to bring such a case, but at least there is some sense in the decision.

14 thoughts on “Interesting State Supreme Court Ruling

  1. The why isn’t beyond me – anti-choicers often bring very spurious cases against abortion providers with the intent of tying them up in litigation and making the reproductive health practises more difficult.

  2. Well, sure… but if that’s the case, it’s the first time I’ve ever heard of an anti-choicer getting an abortion just to do that.

    It also makes me a liar- I can’t count the number of times I’ve said something like “Of course women know that abortions kill a human fetus… that’s sort of the point of getting one.”

    I just… I don’t even know what to say to a case like that.

  3. I see the possibility of another story behind this, one that occurred to me probably because of a link to something about the Roman Catholic position on abortion accompanying the original article.

    The idea would be that Rosa Acuna had an abortion at one stage and then later became immersed in the RC attitudes. Perhaps she told someone and that person urged her to talk to a priest. So several years after the fact she has a huge crisis of conscience and feels she has taken the life of a family member. A priest might have gotten her to see it in this way.

    The fact that she feels terrible does not settled the question of the true blame. It was in fact the powerful male doctor who shouldn’t have made light of what she was doing – perhaps he even said it was a routine procedure!

    Obviously, there are all sorts of ways of filling this out. Perhaps, having discovered that if she saw herself as a passive victim she’d feel better, RA may have let herself then be persuaded that she should bring this out in public to say other lives.

  4. I know I said its beyond me why anyone would pursue this, but I guess I meant why it would get so far in court. I certainly didn’t want to say that RA was to blame for anything related to the decision to abort. It strikes me that yes, later reflection and other influences probably led to her feeling remorseful and thinking that the only way to make penance was to litigate. But for a case which hinges on whether your Dr should inform you your letting them murder a human being to get to such a stage? It seems odd to me.

    Also, the details are sketchy in the news report, but I didn’t get anything about powerful male doctors making light of anything – which, of course, is not to say he didn’t. According to the news report, her initial visit saw her told she was pregnant. Her second was to request an abortion. I guess one interesting question that arises from the ruling is whether a Doctor has obligations to describe or inform the patient on anything but a procedural level. I mean, the ruling seems to stem from the claim that Doctors are obliged only to supply “material medical information”. In which case, suppose he did say it was a routine procedure, meaning at “seven weeks its medically straight forward, you’ll be a day patient, no anaesthetists or anything”. He has fulfilled his *legal* obligation. Do we think, as a Dr, he had others?

  5. It doesn’t seem so far-fetched to me. Isn’t it conceivable that a woman might fail to appreciate the complexity of abortion issues; that her doctor, knowing that most lay people do not have a nuanced understanding of medicine or ethics or questions of personhood, should do his best to inform her? Shouldn’t a doctor try to help his patients make as well-informed a decision as possible? (Even if you think that the answer is “no,” surely you can’t be so incredulous at this argument.)

  6. Let me explain: I was just trying to give a possible scenario. The text certainly didn’t substantiate it, but it was a way of making sense of the some puzzling elements of the story.

  7. JJ: interesting speculation. It’s also consistent with the position/attitudes of a number of religious groups in the U.S.: Methodists, Baptists, Mormons, and whole host of Protestant Evangelical and fundamentalist movements – not just the R.C.’s. Episcopalians, as far as I know, are pro-choice, unlike their Anglican counterparts in the Church of England. I’m not completely sure about the Jewish or Islam cases, but I think most varieties of Judaism say that abortion is OK in certain circumstances – for example, if the mother’s life is in danger or if the pregnancy is the result of a rape. As far as I know, most varieties of Islam say that when the mother’s life is in danger her life takes precedence over the life of the fetus, and abortion is permitted.

    Re the point about medical advice. I don’t know. It’s a tough call. Judging from the small snippets of information given in the report, I’m inclined to think that the doctor did the right thing. We don’t have any evidence (from the report) that the doctor did make light of women’s procedure or that he treated her as just another run-of-the-mill routine abortion case. It’s not clear that doctors should be doling out such ethical advice in addition to medical advice. You might think that if they did give ethical advice, there would be many cases where the doctor in question had a serious conflict of interest.

  8. You know, this all makes perfect sense to me in light of what I recently learned about the anti-choice movement. Many hold the view that women are not fully culpable for their abortions because they have been coerced and deceived by doctors and pro-choice advocates. (I discuss my learning this here: https://feministphilosophers.wordpress.com/2007/08/12/pro-life-rhetoric-and-coercion/.) Presumably RA has been convinced by the anti-choice movement that the decision to abort was really her doctor’s fault (surely a comforting view, if she now believes that decision was wrong), so she’s suing him for it. The only evidence she needs in order to believe this is the anti-choice view that women are not really responsible for their decisions to abort. This part of the anti-choice picture, by the way, also makes sense of anti-choice bafflement when asked what jail terms women should receive: even though they think abortion is a crime, they think that women are not really culpable for it. (When I say “makes sense” I mean that we can understand how these views fit together– I certainly don’t mean any endorsement!)

  9. Story about doctors and the anti-choice movement relating to this. All through med. school two friends of mine (and their cohorts) were persistently targeted by Christian fundamentalist anti-choice groups. They both steered well clear – but not everyone did. Given this, it would be rather unwise to let doctors dispense ethical as well as medical advice.

  10. Re: AC. Surely the possibility of doctors being susceptible to partisan influences does not make their addressing ethical concerns unviable. I mean, literally EVERYONE is similarly vulnerable. School teachers, therapists and guidance counselors may be recruited by religious fundamentalists as well as anyone, but surely this alone doesn’t mean that we should mistrust them.

    It may be that many of those who’ve posted believe that existing abortion laws are justified, so that we don’t really need to worry about women making uninformed decisions (i.e., even if they’re ignorant, it’s not legally possible for them to do anything wrong). But I don’t know. I can easily imagine a woman saying, “If I been aware of this argument that abortion at stage X is murder, I would not have wanted one”; this seems problematic to me.

    And if we grant that abortion is sufficiently complex a procedure to make informing women of relevant concerns a priority, then where should that information come from, if not from doctors? I understand that many are leery of the prospect of doctors dispensing advice which results in a woman declining an abortion, but what’s the alternative? Who better than a doctor? Would you rather women were taught of abortion’s ethical complications by watching TV and reading blogs?

  11. According to this story (which I got from the Curvature), the doctor actually did do a terrible job: But of course all these other points are worth discussing for the sake of more general concerns.

  12. The link from The Curvature to the Associated Press story is this (http://ap.google.com/article/ALeqM5jrs9m50NDTbUyvg4Gy0ZyVfdRedg) which certainly gives more detail. The Doctor seems to have told her the abortion was necessary for health reasons and the foetus was merely blood, however, he performed an incomplete op and she had to have more surgery which was explained to her by a nurse as required because baby parts had been left inside her. It sounds horrendous, and you can see why she might have felt misinformed.

  13. Digivordig, Jender –

    Crikey, that’s really awful.

    Sharky –

    Cheers for your response. The questions you raise are interesting. Below just clarifies why I said what I said above.

    First: re the story about the two doctors. So this is just one story; I did not intend it to be seen as conclusive evidence that all doctors are being targeted by Christian fundamentalist groups. I should have stressed this in my post – I guess I dashed it off a bit too quickly. What the story does is make salient a possibility that doctors may not be as ethically objective as we would like, and that they may be the targets of certain kinds of political pressure. Of course, establishing whether that’s true would require gathering some hard empirical data. I don’t deny that. But I don’t think that it’s an implausible possibility – such behaviour is compatible with other things religious movements have done. For example, in some states in the U.S. these groups have succeeded in convincing many teachers and educators that it is better to teach creationist science (or what is now called ‘intelligent design’) instead of evolution. And they have put huge political pressure on the U.S. government to bring in legislation to make this to happen. In Ireland, where abortion is still illegal, but where it is now legal to request information about abortion services in other countries where it is legal, most of the counselling services for women are run by the government funded Pregnancy Crisis Agency whose explicit aim is to reduce the number of pregnant women who opt for abortion by pointing them towards alternatives. If I were in Ireland and I requested information on abortion abroad, would I trust the advice of a counselor who tried to offer me ethical advice in addition to the information I sought? No, I wouldn’t. My point is: one isn’t automatically qualified to make ethical decisions simply in virtue of being a doctor or a teacher or a counselor.

    Now, I’m not saying that we should run around distrusting every single decision a teacher/counselor/doctor makes. All I’m saying is that, when it comes to ethical decisions, it’s not clear that such people are the obvious choices to be our ethical guides. For example, I think my doctor would do a much better job than I would of taking out my tonsils. I trust her a lot more than I would trust myself to use the right instruments in the right way to do the job. But why should I trust her more than myself to make a substantive ethical decision ? It’s not clear that I should. Indeed, many hospitals recognise that doctors, while they may be medical experts, are not necessarily ethical experts too – that’s why many hospital boards bring in specially trained ethicists to help out with difficult ethical questions. My central point was not that we should distrust doctors about everything, but rather to raise the question as to why, when it comes to ethical questions, we should trust doctors *as opposed to anyone else* – in particular, why we should trust them more than we trust ourselves.

    You ask what alternatives there are to doctors serving as ethical guides. Good question ! In the case of abortion, how about the woman herself ? Now, it may be that the woman in question is not fully aware of all the ethical arguments for and against abortion. But I don’t take that to be a reason to leave the ethical advice-giving to the *doctors*. I take it to be a reason to make sure that women are made aware of all the ethical arguments for and against abortion and are encouraged to think independently and critically about these arguments. One way one might go about doing this is by bringing critical reasoning classes to schools, and increasing the number of these classes taught at universities. Learning to recognise valid and invalid argument forms would benefit *everyone* – women, men, doctors, teachers, counselors – enormously and it would encourage us to take ethical decision making into our own hands.

  14. Thanks for mentioning the job that the doctor did here, Jender. I was about to say something. I do actually feel for this woman. It seems to me that she is quite probably a victim both of an incompetant doctor AND the anti-choice movement trying to use her unusual case for political gain. It sucks all around. Of course, I do not agree with the lawsuit that she brought, but I do see how she would have sought SOME legal recourse, considering what she claims happened (I’m obviously skeptical of the words that she says the doctor used, but he definitely DID fuck up. Medical records show that much).

    Also, I think that if a woman asks what is going to be removed from her womb, she SHOULD be told that it is an embryo/fetus, depending on the stage of pregnancy. That truly is a matter of informed consent in my opinion, and just as I support the right of women to have abortions, I also support the right of women who are morally opposed to abortions to NOT have them. That is no where near the same as telling her that it is a “person.” One is moral judgement, the other is fact.

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