Bioethics: September 2007 Archives

The New Jersey Supreme Court has ruled unanimously that doctors are not liable for giving inaccurate information to women seeking to have an abortion. Justice Barry Albin wrote the opinion, which says:

On the profound issue of when life begins, this court cannot drive public policy in one particular direction by the engine of the common law when the opposing sides, which represent so many of our citizens, are arrayed along a deep societal and philosophical divide.

First of all, this gets the issue compltely wrong. There's no debate whatsoever among actual doctors and scientists about when life begins. It begins at conception. Period. There are some who frame the issue in terms of when life begins, but they do so at odds with science. Those who claim that life does not begin at conception or that there's any serious scientific debate over when life begins are opposing science. People like to complain about the Bush Administration or social conservatives being anti-science, and this seems like such a clear case of the very thing those people complain about. If it's anti-science to suppress or deny controversial but nonetheless dominant views in the scientific community, then it's certainly anti-science to deny and suppress the universal position of all scientists that biological life begins at conception.

Now there is a debate over when moral rights begin. Some tie that question to what they call personhood, and then they define personhood in terms of capacities that only develop later on. They thus conclude that a fetus has no moral worth, and anything can be done to a fetus without any moral worries. That is a controversy, and people disagree about it, including scientists. But it's not a scientific question at all. It's a philosophical question about what sort of living being has moral status and is the subject of rights and moral worth. This particular doctor did not speak to such matters but simply told the woman who was asking whether the baby was already there, "Don't be stupid; it's only blood." When a nurse later told the woman that parts of the baby were still inside, she wondered how something that's only blood could have parts still there. The doctor lied to her, and she had depended on him for accurate information to inform her moral decision.

U.S. Supreme Court Justice Anthony Kennedy took a lot of heat from supporters of abortion rights in his recent opinion overturning lower court decisions that had declared partial-birth abortion bans unconstitutional. One thing many had complained about was that he had put quite a bit of effort into arguing that women are often not given accurate information about what the abortion process consists of and what is actually true of a fetus at the stage in question (6-7 weeks). Many complained that he was portraying women as stupid, ignorant, and in need of men to make their decisions for them. I haven't read the opinion closely, so it's consistent with what I know about the opinion that he did use language that comes across this way. But the general point does not require such a view of women. The general public is disturbingly ignorant on many matters, including scientific information relevant to moral questions. That this is so with abortion is demonstrated by this NJ case.

Doctors and pro-choice advocates who abuse their positions and take advantage of that ignorance by lying to women, as this doctor did, especially when they stand to gain financially or in any other way from such abortions, are doing something that in any other domain of medical science would be punishable by law. But abortion is the sacred cow that doesn't seem to require being treated like any other medical procedure. That was Justice Kennedy's main point, and I think this case demonstrates that his rhetoric, whether it was as anti-woman as people claim or not, is directed at a real problem that, even on pro-choice principles, ought to be addressed. Unfortunately, the NJ Supreme Court doesn't seem to recognize that. Fortunately, South Dakota and Illinois have similar cases that might end up differently, which would give the Supreme Court the opportunity to resolve the split among circuit courts.

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