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What Must a Physician Disclose Prior to Performing an Abortion?

By Adam P. Chaddock

In Doe v. Planned Parenthood, Plaintiff brought an unusual claim against a Planned Parenthood facility, its physicians and nurses after Plaintiff underwent an abortion at the Defendants’ facility. Plaintiff, about three months pregnant, visited a Planned Parenthood facility where she was advised that the fetus “was not a human being.” She then signed the consent form for and underwent a pregnancy termination. On the two year anniversary of the termination, Plaintiff filed a complaint alleging causes of action for wrongful death of the fetus, negligent infliction of emotional distress, and violation of Consumer Fraud and Deceptive Business Practices Act. Plaintiff alleged that the defendants had misled Plaintiff by advising that the fetus was not a human being. All of Plaintiff’s attempted causes of action were based upon the underlying theory that Defendants had a common law duty to make certain disclosures about the effect of an abortion, and that the failure to do so was medical malpractice.

Defendants filed a motion to dismiss arguing that the consent form and corresponding discussion thereof made adequate disclosure to Plaintiff of potential risks to her of the procedure. Further, Defendants argued that there was no common law duty to inform a patient that an abortion terminates the life of a human being from a biological sense. The trial court agreed and dismissed the cause of action. Plaintiff appealed.

The appellate court’s consideration of the matter started with a review of the basic principles of informed consent. The Court noted that Plaintiff would need to allege and prove: (1) that defendants had a duty to disclose material risks; (2) that defendants failed to adequately disclose those risks; (3) that as a direct and proximate cause of the failed disclosure, the patient consented to treatment she otherwise would not have and (4) that Plaintiff was injured by the proposed treatment. The court then turned to the more specific, and potentially thorny, issue of whether a common law duty exists to warn of the biological death of a human being when discussing the risks of an abortion.

In considering this point, the appellate court reviewed a larger number of cases from jurisdictions nationwide. After this review, the appellate court concluded that no court has ever found a common law duty requiring doctors to tell their pregnant patients that aborting an embryo or fetus is the killing of an existing human being. A physician’s discussion with his patient might include this topic, but that would depend upon the particular physician’s moral, philosophical or political beliefs. The appellate court further noted that a difference of opinion on the latter issue is almost guaranteed. As a result, the appellate court noted that Illinois common law does not require physicians to disclose any information about the termination of a living human being as a result of an abortion.

Based on this case then, physicians need only make disclosures about the material medical information, including gestational age and risks of the procedure. Physicians need not advise patients about the effects of an abortion upon the philosophical aspects of life.

Originally published in the Winter 2011 edition of Quinn Quarterly.