Overlooked in the wake of the midterm elections and the Supreme Court oral arguments on partial-birth abortion is a South Dakota abortion case in the federal courts that casts a sharp shaft of light on the national abortion debate. The case is not connected to partial-birth abortion or to a South Dakota ban on nearly all abortions in that state which was thumpingly defeated by the voters on Nov. 7.
This case is about a South Dakota law that gets to the very core of the abortion controversy: When do we become human beings?
The law would require that doctors tell women intent on having abortions that the procedure would "terminate the life of a whole, separate, unique, living human being."
Arguing against this at the Eighth Circuit Court of Appeals in St. Louis, a lawyer for Planned Parenthood, Timothy Branson, said the language of this South Dakota law "injects an ideological component into the discussion of the unsettled question of when human life begins. "This is the first case," he emphasized, "that really shows where the line is."
Yes, it is.
As Adam Liptak reported in the Oct. 31 New York Times, a panel of the court of appeals agreed with Planned Parenthood and blocked enforcement of the law. Many states do have "informed consent" laws by which doctors must provide factual information about the procedure to women, and its health risks. These laws have been upheld by other federal appeals courts.
What, then, makes the South Dakota "informed consent" law different? Before this case (Planned Parenthood v. Rounds) — that "really shows where the line is" — reached the Eighth Circuit, Karen E. Scheier, a federal district court judge in South Dakota — had stopped enforcement of the law with a preliminary injunction back in June 2005, in which she ruled:
"Unlike the truthful, non-misleading medical and legal information doctors were required to disclose" (in the Supreme Court's 1992 Planned Parenthood v. Casey decision), "the South Dakota statute requires abortion doctors to enunciate the state's viewpoint on an unsettled medical, philosophical, theological and scientific issue — that is, whether a fetus is a human being."
Agreeing with her, The New York Times noted, Eighth Circuit Judge Diana Murphy, writing for the 2-to-1 majority, declared: "Governmentally compelled expression is particularly problematic when a speaker is required by the state to impart a political or ideological message contrary to the individual's own views."
Moreover, said Murphy — invoking Justice Sandra Day O'Connor's widely effective phrase to permit abortion — the South Dakota law creates an "undue burden" on the (continually embattled) constitutional right to an abortion.
This crucial dispute reminded me of a letter in the Feb. 18, 1990, issue of the Journal of the American Medical Association that significantly affirmed my decision — contrary to many of my fellow journalists — to become a pro-lifer. Dr. Joel Hylton, a North Carolina physician, wrote in that letter:
"Who can deny the fetus is ... a separate genetic entity? Its humanity also cannot be questioned scientifically. It is certainly of no other species."
I wonder if the federal judges in the district and appellate courts, who have forbidden the enforcement of this South Dakota "informed consent" law, would have allowed the presence in their courtrooms of a 3-D and 4-D ultrasound sonogram?
As the New York Post and Daily News reported in September 2003, a British obstetrician — using ultrasound scanning — showed unborn babies (also known as fetuses) "yawning, blinking, sucking their thumbs, smiling and crying." Some of these separate genetic entities in the sonogram were much younger than 24 weeks — and manifestly of no other species than ours.
In his dissent at the Eighth Circuit, Judge Raymond Gruender got right to the palpable point. He noted that this embattled law goes on to define "a whole, separate unique living being" as an "individual living member of the species Homo sapiens, including the unborn human being."
That, said the judge, "is nothing but an unremarkable tautology (needless repetition). It is simply a restatement of the definition of 'abortion.'"
Quoting from the Merriam-Webster's Collegiate Dictionary, the judge continued, "Abortion is defined as 'the termination of a pregnancy ... resulting in, or closely followed by the death of the embryo or fetus.'" And that departed fetus or embryo, whatever you call it, is unmistakably "an individual living member of the species Homo sapiens."
It is no wonder that supporters of abortion insist on describing themselves as "pro-choice" — and recoil at the term "pro-life." I have a friend who, seeing his unborn child in a sonogram, was exhilarated. But months later, in an argument on abortion, he snapped at me, "If you're pro-life, why don't you kill abortionists?"
"Because," I said, "I AM pro-life."
