concurring: I concur in the majority opinion and add this further word, not because that opinion fails to respond to the questions transferred to us, but because those questions fail to raise a significant issue in the area of malpractice litigation that we address today. The trial court did not ask whether, or how, a physician with conscientious scruples against abortion, and the testing and counselling that may inform an abortion decision, can discharge his professional obligation without engaging in procedures that his religious or moral principles condemn. To say nothing about this issue could lead to misunderstanding.
In response to the questions transferred, the court holds that a sphere of medical practice necessarily permitted under Roe v. Wade, 410 U.S. 111 (1973), is not exempt from standards of reasonable medical competence. Consequently we hold that the plaintiff alleges a violation of the physician’s duty when she claims, in the circumstances of the case, that prevailing standards of medical practice called for testing and advice, which the defendants failed to provide.
It does not follow, however, and I do not understand the court to hold, that a physician can discharge the obligation of due care in such circumstances only by personally ordering such tests and rendering such advice. The court does not hold that some or all physicians must make a choice between rendering services that they morally condemn and leaving their profession in order to escape malpractice exposure. The defensive significance, for example, of timely disclosure of professional limits based on religious or moral scruples, combined with timely referral to other physicians who are not so constrained, is a question open for consideration in any case in which it may be raised. See Note, Father and Mother Know Best: Defining the Liability of Physicians for Inadequate Genetic Counseling, 87 Yale L. J. 1488, 1510-12 (1978) (The Physician as Conscientious Objector); Editorial Note, Genetic Malpractice: Avoiding Liability, 54 U. CIN. L. Rev. 857, 869 (1986) (Failure to Refer to Genetic Counselor).