ACLU Applauds Decision by New Jersey Supreme Court Protecting Reproductive Freedom and Free Speech

TRENTON, NJ - The American Civil Liberties Union today applauded a decision by the New Jersey Supreme Court dismissing a medical malpractice lawsuit that could have improperly forced physicians to give a non-medical, value-laden speech to their patients before performing an abortion. The ACLU called the decision a victory for reproductive rights and free speech in New Jersey.

"We are pleased that the court dismissed this frivolous lawsuit, which had no basis in law or medicine" said Brigitte Amiri, a staff attorney with the ACLU Reproductive Freedom Project. "This case was nothing more than an underhanded attempt to turn doctors into ideological mouthpieces and subject women to non-medical moral judgments"

In 1998, Rosa Acuna brought a medical malpractice lawsuit against a doctor in New Jersey, claiming that he had failed to properly inform her at the time of her abortion that the embryo was a "complete, separate, unique and irreplaceable human being" with whom she had "an existing relationship" and his failure to do so caused her emotional distress. According to court papers, Acuna, who had two children prior to her abortion, stated that at the time of her abortion she understood that she was pregnant and signed a form consenting to the procedure.

"Today’s victory 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 ACLU of New Jersey. "We will not allow the anti-choice lobby to force its moral or theological beliefs upon others and to intimidate doctors or women with lawsuits that are without merit"

In its unanimous decision, the court noted, "we know of no common law duty requiring a physician to instruct the woman that the embryo is an ’existing human being,’ and suggesting that an abortion is tantamount to murder. There is not even remotely a consensus among New Jersey’s medical community or citizenry that plaintiff’s assertions are medical facts, as opposed to firmly held, moral philosophical, and religious beliefs"

Acuna’s lawsuit is one of three instances where anti-choice foes have insisted that doctors must read a similar script to their patients prior to performing an abortion. A class-action medical malpractice lawsuit with similar claims was recently brought in Illinois, and in South Dakota, reproductive rights advocates are currently challenging a law that may require doctors to read language identical to that found in this case.

Today’s decision by the New Jersey Supreme Court only reaches the issue of whether Acuna’s malpractice case should go to a jury trial. Later this month, the U.S. Supreme Court will decide if it will consider a separate issue in the case regarding the legitimacy of a federal equal protection challenge involving New Jersey’s wrongful death statute.

Today’s case is Acuna v. Turkish (Docket No. 59, 525). Lawyers on the ACLU’s friend-of-the-court brief include Amiri and Talcott Camp of the ACLU Reproductive Freedom Project and Barocas of the ACLU of New Jersey.