Acuna and the abortion right: constraints on informed consent litigation.

• Author: Eidmann, Kathryn A.

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. (13)

This Article shows that litigating tort claims in common law courts should not insulate Acuna claims from constitutional scrutiny or overarching public policy concerns. In fact, Acuna claims are constrained by both constitutional sex equality jurisprudence and public policy norms respecting women's status as equal agents. As a threshold matter, when a state common law judge renders a tort judgment in favor of a plaintiff, the court announces a rule of tort law with prospective application. This means if a state court finds that an abortion provider failed to obtain a patient's informed consent because he did not make a particular statement to the patient, then as a result providers must always make this statement to patients in the future to avoid legal liability. This judge-derived rule of tort law is subject to the Federal Constitution.

Judgments in favor of Acuna claims would establish rules of tort that are inconsistent with the Supreme Court's sex discrimination jurisprudence. This Article addresses three significant components of Acuna claims--(1) the statement that the fetus is a "complete, separate, unique and irreplaceable human being," (14) (2) the claim that abortion psychologically harms women, and (3) the assertion 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" (15)--to analyze the way in which the Acuna claims rely on impermissible assumptions about women's roles and capabilities. The latter two claims impermissibly rely on gender-based generalizations about women's roles as wives and/or mothers because they assign a status of "motherhood" to women terminating their pregnancies and provide, without scientific basis, that this status must entail a defined set of emotional consequences for women. Moreover, all three claims characterize the decision-making capacities of women seeking to terminate their pregnancies as impaired or faulty. Such claims presume that at the time of the decision, women cannot fully appreciate the consequences of their actions, that women must be provided with information that any adult would intuitively know, or that women cannot make their own judgments regarding significant life decisions without moral guidance from the State.

Part 1 of this Article tracks the transformation of abortion malpractice litigation from traditional tort claims alleging that a patient suffered physical harm as a result of the abortion procedure into the current informed consent-based Acuna claims. This Part shows that informed consent-based claims have been brought, not in good faith by injured individuals seeking redress, but by antiabortion activists with the purpose of securing burdensome restrictions on access to abortion. Part I also demonstrates that the reasoning of plaintiffs bringing Acuna claims relies on assertions that women possess impaired decision-making capabilities and assumptions that all women are constrained by the social role of motherhood.

Part II of this Article discusses the constraints on these Acuna claims from the perspective of constitutional sex equality and substantive due process doctrine. This Article argues that, at a minimum, a state may not regulate behavior through common law judgments that it could not constitutionally regulate through legislation. Consistent with this doctrine, the Constitution requires state regulation to be consistent with a view of women as equal agents. This constraint prohibits states from relying on gender-based assumptions about women's roles as mothers or their capacities as decision makers. Common law judgments in favor of Acuna claims, regardless of whether they explicitly endorse the reasoning or motivations of the antiabortion advocates bringing the claims, establish rules of tort law that inherently incorporate these constitutionally impermissible gender stereotypes.

1. Tort Law as an Antiabortion Strategy

   An examination of the history and context of abortion malpractice claims illustrates the way in which tort claims have both reflected and shaped strategies of the antiabortion movement over the past two decades. While the tort suits are often in the form of private law--one party suing another for damages to redress an individualized harm--the sources and social history of the abortion malpractice argument make clear that the individuals bringing these suits are interested in norm creation and the collateral impact of the suits, not individual recovery. Those involved in abortion malpractice litigation bring such suits as part of an incremental strategy to restrict exercise of the abortion right, and seek to use the opportunity as a moment for public education and reinforcement of antiabortion norms. Particular assumptions about women's capacities as decision makers and their roles as mothers characterize both the historical development of abortion malpractice suits and the norms articulated by the main actors in the litigation today.

   1. The Rise of Abortion Malpractice Litigation

      Antiabortion groups and individual attorneys began using medical malpractice suits against abortion providers as a strategy to restrict access to abortion in the mid-1980s. While individual clients may have personally sued their doctors for injuries resulting from abortion procedures prior to this time, antiabortion organizations first began to utilize malpractice litigation as a component of activist strategies to oppose the practice and legal status of abortion during this period. These organizations actively searched for women who had terminated their pregnancies in order to represent these women in court and widely publicize their activities. One early prominent abortion malpractice organization, Legal Action for Women, distributed fliers directing women who have had...