Tuesday, September 18, 2007

Informed consent and consumer protection: the case of abortion

Acuna v. Turkish, --- A.2d ----, 2007 WL 2609054 (N.J.)

Rosa Acuna filed a malpractice action against Dr. Sheldon Turkish, her obstetrician-gynecologist, alleging that he failed to provide her information necessary to her informed consent to an abortion. She claimed that he should have told her “the scientific and medical fact that [her six- to eight-week-old embryo] was a complete, separate, unique and irreplaceable human being” and that an abortion would result in “killing an existing human being.” The basic theory was that a doctor must, before performing an abortion, “advise the patient in clear and understandable language that ‘the family member [the embryo] is already in existence and that the procedure-indeed the central purpose of the procedure-is intended to kill that family member.’” Otherwise a woman is not making a fully informed decision to abort. (For an overview of this strategy for discouraging abortions, see Reva Siegel, The New Politics of Abortion: An Equality Analysis of Woman-Protective Abortion Restrictions, 2007 U. Ill. Law Rev. 991 (2007).)

In this case, the New Jersey Supreme Court rejected Acuna’s argument and reinstated the dismissal of her suit. A doctor “unquestionably has a common law duty to provide a woman with material information concerning the medical risks of a procedure terminating a pregnancy,” the court was unwilling to extend that to a suggestion that abortion is tantamount to murder. There is no consensus, either among the medical community or the general citizenry, that the statements Acuna wanted are “medical facts” as opposed to ethical beliefs.

The disputed facts shouldn’t matter, but – perhaps unsurprisingly -- the court did recount disagreement between the parties over who brought up the subject of abortion (each identified the other as the culprit), as well as facts about Acuna’s reproductive history and general health that might seem to justify an abortion to those who feel that justifications are required. (The not-so-hidden narrative here is one of the plaintiff’s regret of her voluntary choice.) Acuna said that she asked if “the baby” was “in there,” and that Turkish replied, “don’t be stupid, it’s only blood.” Turkish didn’t recall his specific response, but thought he likely told her that a “seven-week pregnancy is not a living human being,” but rather it “is just tissue at this time.”

In deposition, Acuna stated that she knew she was pregnant, but she wanted to know if there was “a baby” in her, by which she meant a “human being.” She understood that, without some intervening event, a child would be born to her, but she wanted to know whether she was carrying “an existing living human being.” After meeting with Turkish, Acuna consulted with her husband, returned to Turkish’s office three days later, and signed a consent form acknowledging that the “risks and complications” of the procedure had been explained to her. Turkish performed an abortion.

Acuna had continued bleeding, and was ultimately admitted to the hospital, where she was diagnosed with an incomplete abortion. A nurse told her that Turkish “had left parts of the baby inside of you.” (The court noted that the pathology report contradicted this statement.) Upon her release, Acuna began researching early pregnancy, trying to make sense of the nurse’s remarks and Turkish’s statements, and eventually “concluded” – the court’s term – that the abortion killed “a human being.” She suffered as a result, and was later diagnosed with post-traumatic stress disorder.

Acuna sued for malpractice. Her informed consent claims stated that Turkish wrongly failed to inform her that (1) “[Andres] Acuna, although a person unborn, was a complete, separate, unique and irreplaceable human being”; (2) there existed the potential risk that Andres “was capable of experiencing pain” at eight weeks gestation; (3) abortion involved “actually killing an existing human being”; (4) she would be at risk of suffering from “post-abortion syndrome,” a form of a post-traumatic stress disorder; and (5) 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. Had she received this information, she alleged, she would not have had the abortion.

After various motions and appeals, the trial court ruled that, though emotional distress claims were available against a doctor who failed to obtain informed consent before performing an abortion, Acuna had failed to demonstrate that Turkish withheld material information that a reasonably prudent woman would need to know. Instead, by asking a doctor to state that an embryo is “a complete, separate, unique and irreplaceable human being” and the like, Acuna was asking for value judgments, not medical facts. The court of appeals, however, found a material factual dispute over whether Turkish accurately answered Acuna’s question, “[I]s the baby already there?” and thus remanded for trial.

The Supreme Court agreed with the trial court. Despite the “don’t-be-stupid-it’s-only-blood” remark, Acuna understood she would, unless something changed, have a child in seven months; she did not interpret Turkish’s statement to mean that there was anything wrong with the embryo. Nor did she rely on Turkish’s alleged claims that her health would be endangered absent an abortion (though she did argue that she would have scrutinized the health risks more closely had she known “her baby was already there”).

Giving Acuna’s proposed warnings, moreover, has disadvantages. Turkish and amici argued that these warnings would force doctors to take sides on highly charged issues, unconstitutionally burden women’s right to choose, and violate the First Amendment’s prohibition on coerced speech.

Despite the contentious subject matter, this is in fact the classic dilemma of consumer protection regulation: information that helps some people hurts others. Even when we discount problems of preference formation (which are foregrounded here by the very content of Acuna’s list and by the possibility that suggesting to women that abortions produce post-abortion syndrome itself helps produce symptoms, or at least attribution of symptoms to the abortion rather than other factors), information that would help some women implement their preferences would hinder others.

Informed consent is medical information “that a reasonably prudent pregnant woman in like circumstances would have considered material before consenting to a termination of pregnancy.” “Like circumstances” provides some possibility for tailoring the duty to the woman, except that there is really no way for doctors to tell in advance who would want to hear that an embryo is an existing human being. Proponents of a duty to disclose Acuna’s list (1)-(5) are really arguing that the risk to every woman of coming to realize that she killed a human being is so great, and the harm to her if she foregoes an abortion she truly desires so minimal, that every woman should hear this cautionary list.

Without getting into these intractable preference problems, the court looked at general professional norms. Acuna had no evidence that any doctors currently give such warnings, nor that any jurisdictions impose common-law duties to do so. Requiring doctors to say that aborting an embryo is the killing of an existing human being would suggest “that both the doctor and patient would be complicit in committing the equivalent of murder.” This conclusion has been rejected both by New Jersey’s legislature (by enacting a wrongful death act that doesn’t cover fetuses and by refusing to classify fetuses as persons under homicide statutes) and by the Supreme Court in Roe and Casey.

I don’t find the professional norms argument particularly persuasive; absent government regulation, you wouldn’t find many cigarette companies warning about the health consequences of smoking, either, since it’s not in their interest to do so. But the lack of consensus on what the truth of the matter is, as reflected in practice and legislation, is more significant. In general advertising law, as in defamation, this is the fact/opinion divide. Though often spoken of as a subset of puffery, the fact/opinion divide serves to keep advertising law from regulating at least some attempts to affect preference formation. Here, informed consent strives to to target nearly universal preferences (to live, to avoid pain). Disclosures generally imply not only that the disclosed information is material but that it ought to be material to the consumer; in that, disclosures are no different from other explicit ad claims. Mandating a disclosure means taking a side in a debate; here, however, there is no general scientific or social consensus on the right side.

Consensus, of course, is not required for most government-imposed requirements, but it is relevant either if the common law punishes only clear departures from standard practice or if some constitutional right is implicated. After discussing Roe and Casey’s avoidance of the conclusion that a fetus is an “existing human being,” the court noted that Casey indicated that doctors might have some First Amendment rights relevant to compelled disclosures. For a detailed discussion of this last point, see Robert Post, Informed Consent to Abortion: A First Amendment Analysis of Compelled Physician Speech, 2007 U. Ill. Law Rev. 939 (2007).) Moreover, a South Dakota statute requiring similar disclosures has been enjoined (pending review en banc) on First Amendment and due process grounds. That statute, though democratically enacted, “is pushing the doctrine of informed consent to the edge of a new constitutional fault line.” Rather than reaching the constitutional arguments, the court simply declined to stretch the common law so far.

The court didn’t specifically address Acuna’s claims (2) (fetal pain) and (4)-(5) (post-abortion guilt). These appear at first glance to be more capable of scientific resolution, though that apparent falsifiability may quickly dissolve in debates over what it means to feel pain and the difficulty of determining whether abortion differs from childbirth in its effects on the mental health of similarly situated women. The professional consensus against Acuna's position is significant here, though the relevant profession isn’t doctors but people studying the particular subjects at hand.

In general, however, legislatures – and even courts -- can take sides on disputed factual issues. The FDA does so routinely. A physician who didn’t believe that a particular drug posed certain risks considered well-established by the FDA could certainly be held liable for failure to disclose those risks – this is one reason the black-box warnings on antidepressants for teenagers have been so controversial: they deter prescriptions by doctors who disagree with the FDA’s assessment, but fear liability. In many cases, we’ve simply taken it for granted that we can compel speech by doctors, drugmakers, and commercial speakers in general.

If the doctors in South Dakota have a good First Amendment argument, in other words, then the FDA needs to worry. I recommend Post’s article; informed consent and advertising disclosures have a lot in common, especially from a First Amendment perspective, even though they’ve rarely been considered together.

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