ArticlesVolume 20, Number 2 (2011)

Acuna and the Abortion Right: Constraints on Informed-Consent Litigation

Abstract

During the first two decades after the United States Supreme Court upheld the abortion right in Roe v. Wade, 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. 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. 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.”